/raid1/www/Hosts/bankrupt/CAR_Public/171128.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, November 28, 2017, Vol. 19, No. 235
Headlines
7-ELEVEN INC: "Gittens" Suit Seeks Unpaid Overtime Wages
3M CO: Faces Class Action Over PFOA Tennessee River Contamination
AETNA LIFE: "Doe" Suit Removed to W.D. Mo.
AMERICAN HONDA: "Preston" Consumer Class Suit Moved to California
ARIZONA: Fails to Meet Prison Healthcare Settlement Requirements
BAERS FURNITURE: Eisenband Sues Over Illegal Telemarketing Calls
BARCLAYS PLC: Class Certification in Securities Case Affirmed
BLAZEK CONTRACTING: "Elwell" Labor Suit Seeks Unpaid OT Wages
BMW AG: Hooper Files Suit Over Anti-trust Activities
BP AMERICA: Court Narrows Claims in Oil & Gas Royalties' Suit
CALIFORNIA: Attorney Fee Risk Factor-Based Enhancement Denied
CALIFORNIA MULTIMODAL: Truckers File Misclassification Case
CENTURYLINK INC: Kramer Sues Over Unjust Service Charges
CREDIT SUISSE: Pomerantz Investigates Potential Securities Claims
DBMJ REHABILITATION: "No Cause of Action" Ruling Affirmed
DONALD TRUMP: Plaintiffs in Wash. EO-2 Suit Allowed to File TAC
ELECTROLUX HOME: "Mendoza" Consumer Suit Transferred to Pa. Court
EQUIFAX INC: Oklahoma Attorney Files Data Breach Class Action
EQUIFAX INC: Legal Officer's Role in Data Breach Investigated
ERIN ENERGY: Dismissal of "Lenois" Suit Appealed to Delaware S.C.
FINISAR CORP: Court Issues Order re Discovery in Securities Suit
FLORIDA: Class Certification Reversed in Toll Suit Against DOT
GENERAL ELECTRIC: "Hachem" Sues Over Share Price Drop
GENERAL ELECTRIC: "Mirani" Sues Over Share Price Drop
HYATT HOTELS: Judge Dismisses Banquet Servers' Class Action
IOWA: Wants Disabled Residents' Medicaid Class Action Tossed
IXYS CORP: Franchi Files Suit Over Merger with IXYS Corp.
K12 INC: Shareholders Amend Securities Class Action Complaint
LA ROCCA CONSTRUCTION: Blake Law Sues Over Illegally-Faxed Ads
LITTLE ROCK, AR: Faces Class Action Over False-Alarm Ordinance
LOUISIANA: Class Action Against OFI in Stanford Case Can Proceed
LYFT CAPITAL: Martin Files Suit Over TCPA Breach
MARS PETCARE: 6th Cir. Remands "Roberts" Pet Food Pricing Suit
MCDONALD'S CORP: "King" Suit Disputes Chicken Breast Meat Claims
MEMPHIS, TN: MPD Files Class Action Over Auto Accident Reports
MICHAELSON REAL: "Hayes" Labor Suit Seeks Unpaid Overtime
MILLENNIUM MOTORS: Xin Seeks Minimum, Overtime Pay, Commissions
MISSOURI: Judge Has Yet to Rule on Juvenile Parole Class Action
NATIONWIDE MUTUAL: Court Refuses to Remand "Allen" Suit
NAVIENT CORP: "Gross" Suit Hits Share Price Drop
NFL: Rucker's Concussion Payout to Go to Restitution
NIMBLE STORAGE: Court Grants Stipulation to Dismiss Suit
NORTHROP GRUMMAN: Judge Certifies 401(k) Plan Fees Class Action
PHOENIX WAREHOUSE: Settles Class Action Over Unpaid OT Wages
PIZZA HUT LLC: Ion Sues for Violation of Antitrust Laws
PROMOLOGICS INC: Court Narrows Claims in Unsolicited Ads Suit
PUERTO RICO ELECTRIC: Fights Class Action Over Alleged Fraud
SAUL CHEVROLET: Court Denies Certification in Wage and Hour Suit
SIMMONS FOODS: Fights ACLU's Human Trafficking Class Action
SONIC: Faces Data Breach Class Action in Texas
SPECIALIZED LOAN: Gordon Sues Over Disputed Credit Reports
T-MOBILE USA: Court Refuses to Remand "Black" Labor Suit
TEZOS: Faces Securities Class Action Over $232-Mil. ICO
TGI FRIDAY'S: Wins Summary Judgment in "Calabrese" FLSA Suit
UNITED STATES: Black Farmers Call on Trump to Accept Court Ruling
VALBIN CORP: Court Grants Conditional Certification in "Saleh"
VERDE ENERGY: Court Denies Bid to Dismiss "Coleman" TCPA Suit
VOLKSWAGEN AG: Hausfeld Files Suit Over Defeat Device Software
WELK RESORT: "Miholich" Sues Over Illegal Telemarketing Calls
WELLS FARGO: Class Members Removed from Lists in "McLaughlin"
WEST CALCASIEU: La. App. Affirms Class Certification in "Emigh"
WOLFGANG'S STEAKHOUSE: Averts Class Action Over FACTA Violation
ZHONG BAO: "Genglong" Suit Seeks Overtime Pay, Damages
* Greenberg Traurig Discusses Consumer Demand Letters Under MCPA
* Reed Smith Attorney Dismisses Rulings in Various Class Actions
*********
7-ELEVEN INC: "Gittens" Suit Seeks Unpaid Overtime Wages
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Shakeira Gittens, on behalf of herself, individually, and on
behalf of all others similarly situated, Plaintiff, v. 7-Eleven,
Inc., Defendant, Case No. 17-cv-06378, (E.D. N.Y., November 1,
2017), seeks unpaid overtime compensation and liquidated damages
pursuant to the applicable provisions of the Fair Labor Standards
Act and New York Labor Law.
Gittens worked for 7-Eleven at one of its stores in Freeport, New
York as a Field Consultant. [BN]
Plaintiff is represented by:
Michael R. Minkoff, Esq.
Alexander T. Coleman, Esq.
Michael J. Borrelli, Esq.
BORRELLI & ASSOCIATES, P.L.L.C.
655 Third Avenue, Suite 1821
New York, NY 10017
Tel: (212) 679-5000
Fax: (212) 679-5005
3M CO: Faces Class Action Over PFOA Tennessee River Contamination
-----------------------------------------------------------------
Brian Lawson, writing for WHNT News, reports that a new lawsuit
has been filed on behalf of 23 plaintiffs who say their illnesses
are due to consumption of water contaminated by area chemical
companies and sold by the West Morgan-East Lawrence Water
Authority.
The lawsuit filed in federal court involves residents of Lawrence
and Morgan counties who contend they have either kidney cancer or
thyroid disease, or ulcerative colitis, conditions linked to the
PFC family of chemicals.
The companies named in the lawsuit include 3M, which used the
chemicals PFOA and PFOS for a number of years at its Decatur
plant. Particles from the chemicals were discharged into the
Tennessee River. Other defendants include companies that either
made or used the PFCs, Daikin America and 3M subsidiary Dyneon. It
also names the water authority that sold the drinking water.
The chemicals were widely used to make surfaces impervious, such
as Scotchguard.
The lawsuit argues the intake source from the authority's drinking
water is 13 miles from 3M's plant.
"The EPA and the Alabama Department of Environmental Management
have identified Defendants' facilities as sources of PFOA and PFOS
contamination in the Tennessee River in and around Decatur,
Alabama, including surface water, porewater, sediments, and fish,"
the lawsuit claims. "The primary source is the 3M facility, with
the high levels of POFA and PFOS in groundwater migrating into the
Tennessee River."
The lawsuit follows a health advisory issued last year by the
Environmental Protection Agency on its findings that the West
Morgan-East Lawrence Water Authority's drinking water had
concentrations of the chemicals at higher than recommended levels.
The utility issued its own warning, going further, advising
residents not to drink its water until improved filtration
equipment could be installed. That process took a few months, but
testing has shown the filters have reduced the chemical levels
significantly.
Daikin has already settled another lawsuit related to discharges
into the Tennessee River. Its settlement with the water authority
paid the cost for the $3.9 million water treatment system. The $5
million settlement also included $450,000 in restitution for water
customers who paid water bills last June even though they couldn't
drink the water.
Representatives of 3M have said the company has had a PFCs cleanup
agreement with the state of Alabama since 2006. The company has
also argued the EPA's advisories concerning PFCs are incorrect.
Last year, after the water warnings were issued, 3M said,
"Although we support the work of the EPA and other regulators, we
believe these advisory levels are overly conservative," according
to a statement issued last June by Dr. Carol A. Ley, corporate
medical director for the 3M Medical Department. "We believe that
PFOS and PFOA do not present health risks at levels they are
typically found in the environment or in human blood."
The company said that belief was based on studies of its own
workers who had been exposed to the chemicals in even higher
concentrations.
The lawsuit argues the defendants were negligent and reckless and
it seeks class-action status for the plaintiffs. It lawsuit says
the water authority had 10,425 customers, as of Sept. 30, 2016,
who could join the lawsuit. [GN]
AETNA LIFE: "Doe" Suit Removed to W.D. Mo.
------------------------------------------
The case captioned Jane Doe, individually and on behalf of all
others similarly situated, Plaintiff, v. Aetna, Inc. and Aetna
Life Insurance Company, Defendants., Case No. 1716-CV23378, (Mo.
Cir., September 28, 2017), was removed to the United States
District Court for the Western District of Missouri.
Plaintiff alleges that Aetna failed to protect her confidential
and protected HIV infection status resulting in its unlawful
disclosure to unauthorized recipients. She seeks declaratory
relief, statutory damages, exemplary damages and attorney's fees
and costs resulting from negligence. [BN]
Plaintiff is represented by:
George E. Kapke, Jr.
Zachary L. Enterline, Esq.
KAPKE & WILLERTH, LLC
3304 NE Ralph Powell Road
Lee's Summit, MO 64064
Tel: (816) 461-3800
Email: gek@kapkewillerth.com
zach@kapkewillerth.com
- and -
Jack D. McInnes, Esq.
MCINNES LAW LLC
3500 West 75th Street, Suite 200
Prairie Village, KS 66208
Tel: (913) 220-2488
Email: jack@mcinnes-law.com
Aetna is represented by:
Thomas N. Sterchi, Esq.
David M. Eisenberg, Esq.
BAKER STERCHI COWDEN & RICE, LLC
2400 Pershing Road, Suite 500
Kansas City, MO 64108
Telephone: (816) 471-2121
Facsimile: (816) 472-0288
Email: sterchi@bscr-law.com
eisenberg@bscr-law.com
- and -
Matthew P. Kanny, Esq.
Donna L. Wilson, Esq.
MANATT, PHELPS & PHILLIPS, LLP
11355 W. Olympic Blvd.
Los Angeles, CA 90064
Telephone: (310) 312-4225
Facsimile: (310) 914-5805
Email: kanny@manatt.com
dlwilson@manatt.com
AMERICAN HONDA: "Preston" Consumer Class Suit Moved to California
-----------------------------------------------------------------
The United States District Court for the Northern District of
Illinois, Eastern Division, issued a Memorandum Opinion and Order
granting Defendant's Motion to Transfer Venue in the case
captioned MICHAEL PRESTON, Individually and on Behalf of All
Others Similarly Situated, Plaintiff, v. AMERICAN HONDA MOTOR
COMPANY, INC., Defendant, Case No. 17 C 3549 (N.D. Ill.).
Defendant's Motion to Dismiss is denied as moot.
Plaintiff Michael Preston brings this putative class action
against Defendant American Honda Motor Company, Inc., alleging
breach of express warranty, breach of implied warranty, violation
of the Magnusson-Moss Act and violation of the Illinois Consumer
Fraud and Deceptive Business Practices Act.
Preston contends that Honda deliberately chose to insulate the
wiring in certain of its more recent model-year Accords with a
biodegradable soy-based compound, instead of traditional
insulation, despite knowing that the former is particularly
appetizing to rodents and other critters. By gnawing on the soy-
based insulation, these rodents expose the underlying wiring and
can allegedly induce vehicle malfunctions of the sort Preston
experienced.
The gravamen of Preston's suit is thus that Honda's manufacture of
the Accords in question with soy-based wiring and subsequent
failure to cover repairs violates state and federal warranty law.
Suing on behalf of a class of similarly situated Illinois
residents, Preston also alleges that Honda's conduct amounts to a
violation of the ICFA.
Honda moves to dismiss Preston's Complaint for failure to state a
claim or, in the alternative, to transfer the case to the Central
District of California. The Court need not test the legal
sufficiency of Preston's Complaint because it finds the case
suitable for transfer to a court that is familiar with the facts
and law underlying this case, and thus better situated to decide
Honda's Motion to Dismiss.
To transfer an action to another venue, the district court must
find that: (1) venue is proper in the district where the case was
brought; (2) venue and jurisdiction are proper in the transferee
district; (3) the transferee district is more convenient for both
the parties and witnesses; and (4) transfer would serve the
interest of justice.
Neither party disputes the propriety of venue in this District.
With respect to the second factor, jurisdiction and venue are
proper in the Central District of California. Honda's headquarters
and principal place of business are in Torrance, California, which
is situated within the Western Division of the Central District of
California. Ergo, Honda is subject to personal jurisdiction there.
Accepting Preston's allegations as true yields the conclusion that
that District would also have subject matter jurisdiction under
the Class Action Fairness Act. Venue is similarly proper in that
District because, as recited throughout Preston's Complaint, a
substantial part of the events and omissions giving rise to his
claims occurred at Honda's headquarters.
Satisfied with the first two venue transfer conditions, the Court
proceeds to balance the various factors governing convenience of
the parties and witnesses as well as the interest of justice.
Evaluating the convenience of one venue over another involves
consideration of four factors: (1) the plaintiff's choice of
forum; (2) the situs of material events; (3) the relative ease of
access to sources of proof; and (4) the convenience of the parties
and witnesses.
A plaintiff's choice of forum is typically given substantial
weight, especially when that forum is the plaintiff's home forum.
Such is the case here, where the only nexus between Preston's
claims and the Northern District of Illinois concerns his and the
other putative class members residence in Illinois and the
availability of the subject Honda Accords to Illinois purchasers.
Preston does not challenge conduct of Honda that is in any way
particularized to Illinois but instead its indiscriminate
manufacturing and warranty decisions, which affect all purchasers
and lessors of the identified Accords.
Honda argues that all material events giving rise to Preston's
claims occurred in California, where Honda is headquartered, has
its principal place of business, houses the engineers who monitor
and identify potential quality issues, maintains its warranty and
marketing departments, and handles inquiries from U.S. customers
relating to product and warranty questions.
Preston, on the other hand, urges that the situs of material
events is where the purchases and wiring damage occurred, that is,
in Illinois.
When the design or manufacture of a product is at issue, the situs
of material events is where the product was produced, not where
the plaintiffs made purchases. What is more, the situs of
material events in a breach of contract case and a claim for
breach of express warranty is a contract claim is the location
where the business decisions causing the breach occurred. As such,
this factor favors transfer.
Honda argues that, to the extent not otherwise stored offsite,
documents regarding its warranty, customer service, manufacturing,
and marketing decisions are located at its headquarters in
Torrance, California.
Preston does not dispute the location of this information but
instead argues that, given advances in technology, the majority of
discovery will be in the form of documents equally accessible in
either the Central District of California or the Northern District
of Illinois.
Although it is likely that discovery will be more onerous for
Honda than for Preston (and the other putative plaintiffs), Honda
has not shown that there is a material difference in producing
these documents in this District or in the Central District of
California.
Accordingly, the ease of access to proof is essentially a neutral
venue factor.
Each party contends that it will be inconvenienced by the case
proceeding outside their preferred venue. Neither makes any
argument or furnishes information concerning anticipated
discovery, evidentiary stipulations, deposition procedures, or the
like.
Because Honda is a large corporation, and not an individual like
the Plaintiff, it is in a much better position to bear the
relative inconvenience. Thus, while Preston is not entitled to the
benefit of the tie because of Honda's incomparable burden to
produce employees during discovery and make other witnesses
available for trial, Honda is capable of shouldering this burden.
Accordingly, the party convenience factor to the extent it cuts in
either direction only minimally favors transfer.
Honda argues that the convenience of witnesses favors transferring
the case to the Central District of California. The convenience of
non-party witnesses is the most important element under this venue
transfer factor, since party witnesses normally must appear as
part of their employment.
Testimony from Honda's third-party component suppliers would prove
relevant to Preston's allegation that Honda knew of the
shortcomings associated with soy-based insulation and that its use
on the vehicles in question was a manufacturing defect. Such
evidence would not duplicate any other proposed testimony.
Although Honda has not identified a specific third-party supplier,
this is likely a function of the pre-discovery posture of this
case and the fact that, other than alleging a malfunction of his
Accord's power steering, Preston has not yet specified what wiring
or parts are at issue. In the best case scenario for Preston, this
factor weighs neutrally in the venue transfer balance.
In sum, of the five convenience factors, Preston's choice of forum
weighs slightly in favor of maintaining the action in the Northern
District of Illinois, whereas the situs of material events favors
transferring the case to the Central District of California. Honda
also bears a greater party inconvenience, although the import of
this factor is slim in light of the company's resources. The other
three factors do not clearly favor either party. As such, the
balance of the convenience tips faintly in favor of transfer.
In support of its Motion to Transfer, Honda urges that the
interest of justice favors transferring the case to the Central
District of California. Preston does not respond to any of Honda's
arguments on this score.
Controlling factors include (1) ensuring a speedy trial, (2)
trying related litigation together, (3) the relationship of
communities to the litigation, and (4) having the trial before a
judge who is familiar with the applicable law
It takes almost 75 percent as long for cases to proceed from
filing to disposition and twice as long for cases to proceed from
filing to trial in the Northern District of Illinois than in the
Central District of California. At bottom, the latter District has
a much better track record of speeding cases along from filing to
disposition and from filing to trial, such that this interest-of-
justice factor counsels in favor of transferring the case.
The Court therefore follows the apparent trend among Courts in
this District, which is to grant transfer motions under the key
geographic factors present here: the defendant is located in the
transferee district, two similar class actions are pending in
different federal districts and one of the class actions is
pending in the transferee district. That the plaintiffs in both
California class actions have now voluntarily dismissed their
cases without prejudice does not compel a different result,
particularly as the dismissal in McKown post-dated the filing of
Honda's Motion to Transfer in this case. In any event, both
actions were voluntarily dismissed without prejudice, meaning that
they may well be reinstituted within the life cycle of this
litigation.
Consequently, this factor favors transfer because of the recent
related litigation Judge Real has handled in the Central District
of California.
This factor is often given a great deal of weight. Courts
determining which way this factor cuts tend to focus on both the
situs of material events and the respective interests of the
transferor and transferee forum in the case.
Because California is the situs of material events and Illinois
has no greater interest than California in adjudicating this
litigation, this factor also favors transfer of the case.
The applicable law in this case is the federal Magnusson-Moss Act
as well as Illinois statutory and warranty law. Both courts have
equal expertise in adjudicating the federal warranty claims. While
Illinois courts may enjoy a comparative advantage in deciding
Preston's ICFA and implied warranty claims, federal courts are
accustomed to applying the laws of other states.
Because the convenience of the parties marginally favors transfer
and the interest of justice significantly does, the balance of all
the venue transfer factors is strongly in favor of the defendant.
The case will be transferred to the Central District of California
with the expectation that, pursuant to its Local Rule 83-1.2.2,
Judge Real will be assigned the case.
A full-text copy of the District Court's November 2, 2017,
Memorandum Opinion and Order is available at
http://tinyurl.com/y7jcxbrrfrom Leagle.com.
Michael Preston, Plaintiff, represented by Larry Paul Smith --
lsmith@smithmarco.com -- SmithMarco, P.C..
Michael Preston, Plaintiff, represented by David M. Marco --
dmarco@smithmarco.com -- SmithMarco, P.C. & Stacy Michelle Bardo,
Bardo Law, P.C., 22 West Washington Street, Suite 1500
Chicago, IL, 60602
American Honda Motor Company, Inc., Defendant, represented by
Michael L. Mallow -- MMALLOW@SIDLEY.COM -- Sidley Austin LLP,
Darlene M. Cho -- DCHO@SIDLEY.COM -- Sidley Austin LLP, pro hac
vice, Livia McCammon Kiser -- LKISER@SIDLEY.COM -Sidley Austin LLP
& Mark D. Campbell -- MCAMPBELL@SIDLEY.COM -- Sidley Austin LLP,
pro hac vice.
ARIZONA: Fails to Meet Prison Healthcare Settlement Requirements
----------------------------------------------------------------
Jimmy Jenkins, writing for KJZZ91.5, reports that in 2015, a
federal court approved a class-action settlement between the
Arizona Department of Corrections (ADC) and inmates in state
prisons. The state agreed to meet more than 100 stipulations that
would improve health care, but more than two years later, ADC has
still not met all of the requirements.
The cost of the ongoing settlement process is mounting and if a
federal judge approves the latest request from the plaintiffs'
attorneys, the total amount spent will surpass $3.7 million.
Monitoring And Enforcement Fees
That figure includes about $645,617.58 paid by the state to
plaintiffs' attorneys for their time spent monitoring the
settlement. ACLU attorney David Fathi sad those fees are for
"things like answering mail from our 34,000 class members,
reviewing records" and "doing monitoring visits to the prisons."
Under the settlement agreement, the amount plaintiffs can bill for
monitoring fees is $250,000 annually.
Plaintiffs' attorneys have also requested $1,347,680.87 in "fees,
costs and enhancements" for their two and a half years of work on
the settlement.
Mr. Fathi said those "enforcement fees" are incurred when
attorneys go to court to enforce the provisions of the settlement
agreement.
"We have had to work very hard to enforce the terms of the
settlement agreement," Mr. Fathi said. "Everything that we are
seeking compensation for is work that has been necessary to make
sure the class members get the benefits of the settlement they
entered into."
Defense attorneys say the state has already paid the monitoring
costs, but they have taken issue with the enforcement fees.
In a response challenging the fees sought by the plaintiffs,
defense attorneys argue that plaintiffs' attorneys are charging
too much for the Phoenix market.
Writing to the court, attorney Daniel Struck said, "Plaintiffs'
demand to be compensated at the rates for Washington, D.C., and
Berkley, CA, attorneys for a case they chose to bring in Arizona,
should be rejected by the Court."
Struck's firm, Struck Wieneke & Love, PLC, represents the Arizona
Department of Corrections in the settlement. In his response,
Struck disputes the argument that local attorneys would not take
the case and lists 22 lawyers who have made appearances.
"What is more, plaintiffs demand that Berkeley/Washington, D.C.,
rates be applied not only to attorneys who practice in those
areas, but to . . . a local Arizona attorney billing on a case
brought in Arizona District Court. This request defies common
sense and is not supported by plaintiffs' motion or other legal
authority."
Struck continued, "These cases have become cash cows for
plaintiffs' counsel, incentivized by prolongation of the
settlement agreement."
Prison Litigation Reform Act
Mr. Fathi said, "The defense is wrong to say we should only get
compensated at a lower Arizona rate."
The Prison Litigation Reform Act limits the hourly rate lawyers
can charge for fees in cases brought by prisoners to $219 an hour.
Mr. Fathi said absent the PLRA, plaintiffs' attorneys in the case
"some of whom have 30 and 40 years of experience, would be billing
at much higher rates -- $500, $600, $700 an hour."
University of Michigan Law Professor Margo Schlanger said the fees
Mr. Fathi quoted are in line with what civil rights attorneys
would charge in large metro areas like Phoenix. She said the
market rate for defense counsel shouldn't be confused with the
rate for civil rights counsel.
"There's a ton of case law that says when you're thinking about
what civil rights counsel should be paid, you want to compare to
what other civil rights lawyers in complex litigation get paid,"
she said. "You don't compare them to what personal-injury lawyers
or legal services lawyers get paid."
Defense attorneys are also challenging the nature of the work
billed by plaintiffs' attorneys as "enforcement fees."
Struck wrote to the court: "Plaintiffs' counsel's role is simply
to review excel spreadsheets of compliance numbers, and send a
letter when there is a pattern of non-compliance. Such tasks do
not require any expertise."
Mr. Fathi disagrees. He said the difficulty of the case actually
allows them to enhance their fees.
In a court filing requesting the fees, Mr. Fathi wrote:
"Plaintiffs' counsel has continuously provided far more than "run-
of-the-mill' representation for the plaintiff class -- indeed,
excellent results have been achieved," he said. "As a result of
plaintiffs' efforts, the court has issued numerous orders finding
Defendants non-compliant with various provisions of the
stipulation, ordering defendants to properly monitor their
compliance with the stipulation's requirements, and enforcing its
terms."
Outside Counsel, Not Attorney General, Handling Case For State
While the two sides fight over the plaintiffs' fees, the defense
counsel has been paid more than $1.8 million from the state for
their work on the case.
Arizona Office of Attorney General spokeswoman Mia Garcia said she
believed the previous administration made the decision to retain
outside counsel at a request from the Arizona Department of
Corrections.
In an email, Ms. Garcia said, "From my understanding, the Attorney
General's Office did not have the resources to defend a class-
action lawsuit involving more than 30,000 inmates."
Assistant Attorney General Lucy Rand was overseeing some
correspondence and document requests, but Garcia said, "the Office
Of Attorney General is no longer handling the case. Now all legal
actions are performed by Struck Love Bojanowski & Acedo, PLC."
Judge Lambastes Private Firm Defending ADC
Attorneys from the law firm did not respond to a request for
comment for this story, but they have been the focus of great
frustration shown by Judge David Duncan as he has overseen the
settlement.
At a hearing in September, Judge Duncan laid into defense attorney
Tim Bojanowski after Mr. Bojanowski referred to data from the
wrong month while reviewing the state's compliance with the
settlement.
"Mr. Bojanowski, I have a lot of tolerance for how difficult this
is, because I have made missteps. But . . . the error that you
just made is so profound that it's just not off the tip of your
tongue as to what month we're talking about is staggering to me,"
Duncan said.
"You know, this ought to be your full-time job," Judge Duncan
continued. "So everybody ought to be up to speed on this. You
have got a cast of thousands. My God. I look at the last
pleading you filed and your firm has got, what, seven, eight
people listed on it."
Judge Duncan also criticized the defendants for not employing the
power of the Office of Attorney General.
"You have got the Attorney General's Office, the biggest law firm
in the state," the judge said. "And the lawyer who is here before
the court on a grave matter of health and safety for . . . between
35,000 and 40,000 . . . people whose lives are at stake here. And
the lawyer who is the lead on this point doesn't even know what
month we're talking about."
"Don't Violate The Law'
Mr. Fathi said his inmate clients deserve better.
"We entered into this settlement hoping that the state would
comply," he said. "If the state had complied, this case would be
over by now. It's exceedingly unfortunate for everybody, but most
of all for the prisoners that are being denied necessary and in
some cases life-saving care that this case is dragging on as long
as it has."
Mr. Fathi said the way to avoid paying plaintiffs' attorneys is
simple: don't violate the law.
"If the Arizona Department of Corrections had followed that
advice, we wouldn't be here," he said. [GN]
BAERS FURNITURE: Eisenband Sues Over Illegal Telemarketing Calls
----------------------------------------------------------------
Dziyana Lazarevich Eisenband, individually and on behalf of all
others similarly situated, Plaintiff, v. Baer's Furniture Co.,
Inc., Defendant, Case No. 17-cv-81220, (S.D. Fla., November 3,
2017), seeks injunction prohibiting Defendant from using
prerecorded messages to call telephone numbers without the prior
express written consent of the called party; actual, statutory
damages and/or trebled statutory damages; and such further and
other relief under the Telephone Consumer Protection Act.
Defendant owns and operates sixteen retail furniture stores
throughout Florida and regularly engages in unsolicited
telemarketing in violation of the TCPA, says the complaint.
Defendant transmitted the above prerecorded message to Plaintiff
to persuade them into visiting their showroom. [BN]
Plaintiff is represented by:
Manuel S. Hiraldo, Esq.
HIRALDO P.A.
401 E. Las Olas Boulevard, Suite 1400
Ft. Lauderdale, FL 33301
Telephone: 954-400-4713
Email: mhiraldo@hiraldolaw.com
- and -
Andrew J. Shamis, Esq.
SHAMIS & GENTILE, P.A.
14 NE 1st Avenue, Suite 400
Miami, FL 33132
Telephone: 305-479-2299
Email: ashamis@shamisgentile.com
BARCLAYS PLC: Class Certification in Securities Case Affirmed
-------------------------------------------------------------
Pomerantz LLP achieved another seminal post-Halliburton II victory
in the Second Circuit on Nov. 6 for investors in Strougo v.
Barclays PLC, 16-1912 (November 6, 2017). The Second Circuit
affirmed the district court's February 2, 2016, Opinion and Order
granting Plaintiffs' motion for class certification, holding that
direct evidence of price impact is not always necessary to
demonstrate market efficiency, as required to invoke the Basic
presumption of reliance and was not required here; that defendants
seeking to rebut the Basic presumption must do so by a
preponderance of the evidence, which the Defendants, in this case,
failed to do; and that the district court's conclusion regarding
the Plaintiffs' class-wide damages methodology was not erroneous.
The case, which involves claims pursuant to Sections 10(b) and
20(a) of the Securities Exchange Act of 1934, concerns defendants'
concealment of information and misleading statements over a three-
year period regarding its management of its "LX" dark pool, a
private trading platform where the size and price of the orders
are not revealed to other participants. In certifying the class
in February 2016 following a thorough analysis of the parties'
briefing, expert reports, and an in-depth evidentiary hearing,
Judge Scheindlin concluded that under the Supreme Court's Basic
"fraud-on-the-market" doctrine, reliance by investors on
Defendants' affirmative misleading statements could be presumed,
because Barclays' American Depository Shares trade in an efficient
market. The district court rejected defendants' argument that to
show market efficiency, plaintiffs must provide event studies
showing that the market price of the company's stock price reacted
quickly to the disclosure of new material information about the
company. While plaintiffs did, in fact, proffer an event study,
the court held -- consistent with a vast body of case law -- that
no one measure of market efficiency was determinative and that
plaintiffs could demonstrate market efficiency through indirect
evidence of market efficiency. In so holding, the court observed
that event studies are usually conducted across "a large swath of
firms," but "when the event study is used in a litigation to
examine a single firm, the chances of finding statistically
significant results decrease dramatically," thus not providing an
accurate assessment of market efficiency. The district court then
found, following its extensive analysis, that plaintiffs
sufficiently established market efficiency indirectly, and thus
direct evidence from event studies was unnecessary.
Leaving no ambiguity, the Second Circuit's decision affirming
Judge Scheindlin's opinion cited another Pomerantz victory in
Petrobras, 862 F.3d at 276, and made clear that, "We have
repeatedly-and recently-declined to adopt a particular test for
market efficiency." This decision is a significant win for
plaintiffs as it conclusively holds that "direct evidence of price
impact under Cammer 5 is not always necessary to establish market
efficiency and invoke the Basic presumption." The Court made
clear that the burden on plaintiffs is not "onerous" and that
there would be little point to considering factors looking at
indirect evidence of market efficiency if they only came into play
after a finding of direct efficiency through an event study.
The Second Circuit also put an end to the effort by defendants to
minimize their burden of rebuttal. The Court made abundantly
clear that defendants seeking to rebut the Basic presumption must
do so by a preponderance of the evidence. In so holding, the
Second Circuit recognized that the Basic presumption would be of
little value if defendants could overcome it easily.
Specifically, the Court -- pointing to language in Halliburton II
stating that defendants could only rebut the Basic presumption by
making a showing that "sever[ed] the link" between the
misrepresentation and the price a plaintiff paid and that any such
evidence must be "direct, more salient evidence" -- held that it
would be inconsistent with Halliburton II to "allow[] defendants
to rebut the Basic presumption by simply producing some evidence
of market inefficiency, but not demonstrating its inefficiency to
the district court." The Court rejected defendants' contention
that Federal Rule of Evidence 301 applies and made clear that the
Basic presumption is a judicially created doctrine and thus the
burden of persuasion properly shifts to defendants to rebut the
Basic presumption by a preponderance of the evidence. The Court
placed the burden of showing there is no price impact upon
defendants and confirmed that plaintiffs have no burden to show
price impact at the class certification stage.
Jeremy Lieberman, Managing Partner of Pomerantz, commented: "We
are very gratified by the Second Circuit's decision. In reaching
it now, and the Petrobras decision this past summer, the Second
Circuit has unambiguously reaffirmed Halliburton II and Basic's
guidance that class certification for widely traded securities
such as Barclays and Petrobras was a "common sense' proposition.
For too long, defendants have tried to obscure this guidance by
attempting to require arcane event studies at the class
certification stage, which had little to do with the merits of the
case or the damages suffered by investors. This decision debunks
that effort, providing a far easier and more predictable path for
securities class actions plaintiffs going forward."
With offices in New York, Chicago, Los Angeles, and Paris, The
Pomerantz Firm -- http://www.pomerantzlaw.com-- concentrates its
practice in the areas of corporate, securities, and antitrust
class litigation. Founded by the late Abraham L. Pomerantz, known
as the dean of the class action bar, the Pomerantz Firm pioneered
the field of securities class actions. [GN]
BLAZEK CONTRACTING: "Elwell" Labor Suit Seeks Unpaid OT Wages
-------------------------------------------------------------
Roger Elwell, individually and on behalf of all others similarly
situated, Plaintiff, v. Blazek Contracting Corp., Defendant, Case
No. 17-cv-05020, (D. Minn., November 3, 2017), seeks to recover
unpaid wages and overtime, liquidated damages, penalties, fees and
costs, prejudgment and post-judgment interest, and any other
remedies under the Fair Labor Standards Act, Minnesota Fair Labor
Standards Act and the Minnesota Payment of Wages Act.
Blazek Contracting Corp. is a parcel delivery business that hires
delivery driver employees to deliver packages in Minnesota. Elwell
worked as a delivery driver. [BN]
Plaintiff is represented by:
Molly E. Nephew, Esq.
Jacob R. Rusch, Esq.
David H. Grounds, Esq.
JOHNSON BECKER, PLLC
444 Cedar Street, Suite 1800
Saint Paul, MN 55101
Telephone: (612) 436-1800
Fax: (612) 436-1801
Email: mnephew@johnsonbecker.com
jrusch@johnsonbecker.com
dgrounds@johnsonbecker.com
BMW AG: Hooper Files Suit Over Anti-trust Activities
----------------------------------------------------
Clay Hooper and Scott Wyatt, Plaintiffs, on behalf of herself and
all others similarly situated, v. BMW AG, BMW of North America,
LLC, Volkswagen AG, Volkswagen Group of America, Inc., Audi AG,
Audi of America, Inc., Audi of America, LLC, DR. Ing. H.C. F.
Porsche AG, Porsche Cars North America, Inc., Bentley Motors
Limited, Daimler AG, Mercedes-Benz USA, LLC, Mercedes-Benz Vans,
LLC and Mercedes-Benz U.S. International, Defendants, Case No. 17-
cv-06416, (N.D. Cal., November 2, 2017), seeks damages and
injunctive relief, pursuant to federal antitrust law and state
antitrust, unfair competition in particular the Sherman Act and
the Clayton Act and the various state consumer protection laws.
Defendants are German automobile manufactures that have reportedly
been secretly colluding with each other since the 1990s on matters
ranging from car development, gasoline engines, diesel engines,
brakes, transmissions, gearboxes, choices of suppliers, emissions
controls and even prices for parts.
Hooper leased then purchased a 2014 BMW X5 with a diesel engine
from a dealership in San Mateo, California while Wyatt leased a
new 2016 BMW 435i with a gasoline engine from the Weatherford BMW
dealership located in Berkeley, California. [BN]
Plaintiff is represented by:
Jack A. Atnip, Esq.
HELLMUTH & JOHNSON, PLLC
8050 West 78th Street
Edina, MN 55439
Tel: (952) 941-4005
Fax: (952) 941-2337
Email: jatnip@hjlawfirm.com
BP AMERICA: Court Narrows Claims in Oil & Gas Royalties' Suit
-------------------------------------------------------------
The United States District Court for the Eastern District of
Oklahoma issued an Opinion and Order granting in part and denying
in part Defendant's Motion to Dismiss the case captioned CHIEFTAIN
ROYALTY COMPANY, Plaintiff, v. BP AMERICA PRODUCTION COMPANY,
Defendant, Case No. 16-CV-444-JHP (E.D. Okla.).
Plaintiff alleges that BP breached its express duties under oil
and gas leases to pay royalties to Plaintiff and the putative
class on Fuel Gas natural gas produced from the wells but used off
the lease premises as fuel to power the gathering system
components from wells in Oklahoma in which the class owns mineral
interests. Plaintiff alleges BP knowingly and systematically
underpaid royalties to Plaintiff and the putative class members
through a policy of paying no royalty for Fuel Gas, which BP
implemented by failing to disclose to Plaintiff and other putative
class members on their monthly royalty checkstubs that BP was not
paying royalty on Fuel Gas.
Plaintiff seeks to recover the royalty BP owes it and the putative
class for its breach of express covenants to pay royalties on Fuel
Gas. In this case, Plaintiff brings claims against BP for breach
of contract, tortious breach of contract, unjust enrichment, fraud
and deceit, accounting, and injunction.
In considering a Rule 12(b)(6) motion, the court must accept all
well-pleaded allegations of the complaint as true, and must
construe them in the light most favorable to the plaintiff. To
withstand a motion to dismiss, a complaint must contain enough
allegations of fact to state a claim to relief that is plausible
on its face.
Class Action Allegations
All non-excluded persons or entities who are or were royalty
owners in Oklahoma wells where BP, including its predecessors or
affiliates, is or was the well operator and working interest owner
or, as a nonoperating working interest owner, BP separately
marketed gas and who are or were entitled to share in royalty
proceeds payable under oil and gas leases that contain an express
provision stating that royalty will be paid on gas used off the
lease premises and/or in the manufacture of products.
BP argues that Chieftain's class claims should be dismissed on the
ground of issue preclusion. BP contends that other plaintiffs, not
named in this case, have previously attempted without success to
certify a similar class in various Oklahoma courts.
Plaintiff's proposed class consists of interest owners with leases
containing an express obligation to pay royalties on Fuel Gas.
Plaintiff does not allege BP deducted post-production costs
incurred to transform gas into a marketable product, which would
implicate the Mittelstaedt, Mittelstaedt v. Santa Fe Minerals,
Inc., 954 P.2d 1203 (Okla. 1998), rule and would be similar to the
claims made in Watts, Watts v. Amoco Prod. Co., Case No. 98,782
(Okla. Civ. App. Sept. 14, 2004) and Rees, Rees v. BP Amer. Prod.
Co., 211 P.3d 910, 910 (Okla. Civ. App. 2008). Plaintiff here
alleges BP breached an express Fuel Gas clause by using or
allowing third parties to use Fuel Gas off the leased premises to
power machinery and equipment, an issue that was never litigated
in Watts. It is well-established that Oklahoma courts distinguish
between breaches of express and implied covenants.
In short, it appears that Watts and Rees cannot preclude the class
claims in this case, because Watts did not address the express
covenant at issue here. Indeed, Watts did not even mention Fuel
Gas. Therefore, the Court rejects BP's argument that this case is
similar to the Implied Covenant Cases and the class claims should
be similarly dismissed pursuant to Watts and Rees.
Breach of Contract (Count I)
BP argues Plaintiff fails to state a claim for breach of contract
(Count I), because Plaintiff did not describe with specificity the
leases' terms or attach copies of the leases at issue to the
Complaint.
BP's argument lacks merit. Plaintiff included specific allegations
about the express lease terms pertaining to Fuel Gas:
Specifically, each of the oil and gas leases requires, through the
same or substantially similar language, that BP pay royalty to the
lessors for gas 'used by the lessee off the leased premises or for
the manufacture of casinghead gasoline or other products. These
allegations sufficiently identify the relevant lease terms such
that BP has adequate notice of Plaintiff's breach of contract
claim. Federal Rule of Civil Procedure 8(a)(2) requires only a
short and plain statement of the claim, to give the defendant fair
notice of what the . . . claim is and the grounds upon which it
rests.
Plaintiff's allegations regarding the Fuel Gas clause satisfy this
standard for purposes of the breach of contract claim.
Tortious Breach of Contract (Count II)
BP contends Plaintiff's claim for tortious breach of contract
should be dismissed, because the Complaint provides no facts to
support the existence of a "special relationship" that could give
rise to such a claim. BP argues the existence of an oil and gas
lessor-lessee relationship itself does not create the requisite
special relationship that could support a claim for tortious
breach of contract.
The Court agrees with BP that Plaintiff's tortious breach of
contract claim should be dismissed. Oklahoma courts recognize
tortious breach of contract only in limited circumstances, such as
in the insurance context.
Accordingly, Plaintiff's claim for tortious breach of contract is
dismissed without prejudice.
Unjust Enrichment (Count III)
BP asserts Plaintiff's unjust enrichment claim fails, because
Plaintiff has an adequate remedy at law for BP's alleged breach of
the leases.
BP does not dispute that Plaintiff may plead alternative claims
for relief but submits that the better reasoned approach is to
reject Plaintiff's argument and to require Plaintiff to stand on
its breach of contract claim. The Court disagrees with BP. Rule 8
permits Plaintiff's alternative pleading approach. Therefore,
dismissal of the unjust enrichment claim at this stage is
unwarranted.
Fraud (Actual and Constructive) and Deceit (Count IV)
BP contends the fraud claim should be dismissed, because the
alleged harm in the fraud claim is identical to that resulting
from Plaintiff's breach of contract claim. However, contrary to
BP's argument, Plaintiff does not allege that its fraud claim is
based in BP's concealment of its intention to breach the contract.
Rather, Plaintiff alleges BP violated its duty under PRSA to
accurately inform the plaintiffs of the facts on which the royalty
payments are based. A violation of PRSA's reporting requirements
may form the basis for a constructive fraud claim.
Therefore, BP's request to dismiss the fraud claim for this reason
is denied.
Statute of Limitations
Finally, BP requests dismissal of Plaintiff's claims based on
expiration of the statute of limitations. To dismiss a claim
pursuant to Rule 12(b)(6) on this basis it must be clear from the
face of the complaint that the claims are time-barred.
Oklahoma courts follow the discovery rule, which allows
limitations in tort cases to be tolled until the injured party
knows, or in the exercise of reasonable diligence, should have
known of the injury. However, Plaintiff asserts the PRSA governs
its non-breach of contract claims, and as explained above, the
PRSA imposes no duty on the royalty owner to request information
about the correct volume and price of the gas prior to deductions.
Moreover, the issue of whether Plaintiff exercised reasonable
diligence to discover BP's alleged misconduct is a fact-based
question not appropriately resolved on a motion to dismiss.
Accordingly, BP's request to dismiss on this basis is denied.
A full-text copy of the District Court's November 2, 2017 Opinion
and Order is available at http://tinyurl.com/yatqbvl7from
Leagle.com.
Chieftain Royalty Company, Plaintiff, represented by Bradley E.
Beckworth, Nix Patterson & Roach, 205 Linda Drive, P.O. Box 679,
Daingerfield, TX 75638-2107
Chieftain Royalty Company, Plaintiff, represented by Cody L. Hill,
Nix Patterson & Roach, pro hac vice, Jeffrey J. Angelovich, Nix
Patterson & Roach, pro hac vice, John C. Hull, Nix Patterson &
Roach, 205 Linda Drive, P.O. Box 679, Daingerfield, TX 75638-2107,
Lawrence R. Murphy, Jr. -- murphy@richardsconnor.com -- Richards &
Connor, PLLP, Lisa P. Baldwin, Nix Patterson & Roach, 205 Linda
Drive, P.O. Box 679, Daingerfield, TX 75638-2107, pro hac vice,
Michael Burrage, Whitten Burrage, 512 N Broadway Ave Suite #300,
Oklahoma City, OK 73102, USA, Patranell Lewis, Barnes & Lewis,
LLP, Robert N. Barnes, Barnes & Lewis, LLP, 208 NW 60th
StreetOklahoma City, OK 73118, Susan R. Whatley, Nix Patterson &
Roach, pro hac vice & Trey Duck, Nix Patterson & Roach, 205 Linda
Drive, P.O. Box 679, Daingerfield, TX 75638-2107, pro hac vice.
BP America Production Company, Defendant, represented by Amanda D.
Price, Squire Patton Boggs, LLP, pro hac vice, Greg R. Wehrer,
Squire Patton Boggs, LLP, 2550 Main Street, North West,
Washington, District of Columbia 20037, pro hac vice, Charles D.
Neal, Jr. -cdn@steidley-neal.com -- Steidley & Neal, David Patrick
Long, Squire Patton Boggs, LLP, 2550 Main Street, North West,
Washington, District of Columbia 20037, Mark D. Christiansen --
mark.christiansen@mcafeetaft.com -- McAfee & Taft & Michael F.
Smith -- michael.smith@mcafeetaft.com -- McAfee & Taft.
CALIFORNIA: Attorney Fee Risk Factor-Based Enhancement Denied
-------------------------------------------------------------
Metropolitan News-Enterprise reports that an attorney fee award in
connection with work done in securing fees in a private attorney
general action would logically not be enhanced based on "risk,"
the Court of Appeal for this district held on Nov. 3.
The decision came in a case in which trial court ordered the state
to pay $836,211.25 in attorney fees to lawyers for work they did
in defending previous attorney fee awards in the case, a case
which stretches back to the filing of a complaint on June 20,
1978, and includes a decision by the California Supreme Court. It
was alleged in the class action that the state unconstitutionally
collected higher vehicle license fees and use taxes on vehicles
purchased out of state.
The state appealed the latest fee awards, divided among three
firms and one sole practitioner, now located in Houston; the sole
practitioner and plaintiff, Patrick G. Woosley, cross appealed.
Broken down, the awards were: $14,332.50 to Jones, Bell, Abbott,
Fleming & Fitzgerald L.L.P, $80,010 to the Gansinger Firm, $15,600
to the Law Offices of John F. Busetti, and $70,000 to Woosley.
Enhancements Properly Denied
Writing for Div. Five, Justice Lamar Baker said Los Angeles
Superior Court Judge Stephanie M. Bowick did not abuse her
discretion in making the awards. With respect to the enhancements
Woolsey sought in connection with the risk a lawyer in a private
attorney general action takes that no fees will be ordered, should
there be a lack of success, and based on a delay in payment,
Justice Baker wrote:
"[W]e conclude the trial court's decision not to enhance Woosley's
fee award for risk and delay was not error. By the time
Plaintiffs' Counsel applied for the attorney fees at issue here,
their entitlement to an award of some amount was all but
inevitable (notwithstanding the State's arguments to the contrary)
based on their success in the underlying litigation and their
earlier fee award. Thus, the trial court did not abuse its
discretion in failing to enhance Mr. Woosley's award for risk."
He went on to say that while a small enhancement based on delay in
payment is permissible, being akin to interest, the award is
discretionary.
Mr. Woosley contested deductions Judge Bowick made from the amount
he requested, but Baker declared:
"The court's method and results were both sound."
Serrano IV Cited
Judge Bowick rebuffed the state's contention that the attorneys
were entitled to no further fees. She cited the California Supreme
Court's 1982 decision in Serrano v. Unruh (Serrano IV) for the
proposition if a party has received attorney fees in a private
attorney general action, pursuant to Code of Civil Procedure
Section 1021.5, entitlement to fees in connection with gaining
fees follows.
In that decision, the high court said:
"We conclude that, absent circumstances rendering an award unjust,
the fee should ordinarily include compensation for all hours
reasonably spent, including those relating solely to the fee."
Initial Victory
Mr. Woosley initially scored a victory in the trial court.
Then-Los Angeles Superior Court Judge Lester M. Olson awarded
$13.7 million to class counsel and $1 million in fees to Mr.
Woosley "for services rendered as class representative."
The state appealed from a judgment in favor of the two classes
Olson certified, and Mr. Woosley appealed from the denial of fees
for his legal services. The Court of Appeal affirmed the judgment
for the classes and reversed the denial of fees for
Mr. Woosley's legal work.
The California Supreme Court in 1992 affirmed and reversed the
Court of Appeal.
Then-Chief Justice Ronald George (now retired) wrote:
"[W]e hold the state violated the commerce clause of the United
States Constitution by imposing vehicle license fees and use taxes
on vehicles originally sold outside California that were higher
than the fees and taxes charged on similar vehicles first sold
within the state . . .
"[W]e hold the class claim filed in this case was not authorized
by statute. That claim is valid only as to Woosley in his
individual capacity. Although our ruling does not automatically
preclude continuation of this suit as a class action, the class
may include only persons who timely filed valid claims for
refunds."
$1 Billion Consequences
George noted that under the judgment as it stood, refunds,
according to the state's reckoning, would amount to more than $1
billion. He also noted that the state had ceased its
discriminatory practice on 1976.
The chief justice added:
"Because our opinion will result in a substantial reduction in the
amount of the judgment, the trial court shall reconsider the
amount of its award of attorney fees to counsel for the class and
the amount of its award to Mr. Woosley "as fees for services
rendered as class representative.' "
On remand, there came a $23 million attorney fee award, with
costs, which the Court of Appeal in 2010 reversed because
consideration had not given "any consideration to the lack of
success." In 2014, the trial court pared the award to $2.8
million, and the lawyers appealed.
Last April 24, the Court of Appeal, in an opinion by Baker,
affirmed in part, and reversed part.
In issue in the appeal decided on Nov. 3 were attorney fees sought
in 2015 for work done in the case subsequent to the period covered
by the 2014 award.
Woosley Comments
Woosley commented on Nov. 3:
"Overall, I am pleased with the Court of Appeal's ruling
upholding the judgment in appeal B275402. This was part of
litigation that stopped the DMV from discriminating in the
calculation of the annual vehicle license fees ("Car Tax') on
vehicles originally purchased outside of California. The amount
of discrimination eliminated has been estimated between one and
two billion dollars.
"The litigation started in 1978 relating to a vehicle purchased in
1976."
The case is Woosley v. State of California, B275402.
Woosley represented himself in the appeal. Other attorneys on the
appeal were Deputy Attorney General Hutchison B. Meltzer for the
state; John B. Murdock for Law Offices of John F. Busetti; James
M. Gansinger and Eric L. Troff for The Gansinger Firm; Craig R.
Bockman and Kevin K. Fitzgerald for their own firm of Jones, Bell,
Abbott, Fleming & Fitzgerald. [GN]
CALIFORNIA MULTIMODAL: Truckers File Misclassification Case
-----------------------------------------------------------
Jill Dunn, writing for CCJ, reports that seven Los Angeles area
truckers paid as independent contractors but allegedly treated as
employees have filed state wage theft claims seeking an average of
$153,150 per driver.
The Teamster-backed Justice for Port Drivers says California
Multimodal made illegal deductions to the truckers' paychecks and
did not reimburse business expenses. The 275-truck carrier also
violated state law by not paying meal and rest break premiums,
minimum wage for all hours worked and waiting time penalties, the
organization stated.
The California-based CMI, whose parent company, Cal Cartage, was
purchased by the New Jersey-based NFI Oct. 2, did not immediately
respond to a request for comment.
These claims filed with the California Division of Labor Standards
Enforcement Oct. 20 are similar to at least 27 others pending with
agency against California Cartage. Since 2015, the company has
appealed nine DLSE cases after the agency concluded the claimants
were employees misclassified as contractors. Seven remain pending
in California's Superior Court after the company settled two.
Similar issues also promoted two class actions against Cal
Cartage's trucking divisions and two mass actions against its K &R
Transportation segment, all in superior court. Mass actions or
torts involve a set of plaintiffs treated individually while class
action members are treated as one plaintiff instead of
individually.
This latest round of SoCal trucker misclassification cases was
followed by the introduction of two Teamster-backed Congressional
bills, each with eight co-sponsors. The Port Drivers Bill of
Rights Act would task the labor and transportation departments
with creating a task force to examine how drayage carrier's
leasing practices affect truckers' pay. The Clean Ports Act,
introduced for the fourth time since 2010, would alter federal law
to allow ports more drastic measures to reduce truck pollution and
congestion than currently allowed. [GN]
CENTURYLINK INC: Kramer Sues Over Unjust Service Charges
--------------------------------------------------------
Anthony Kramer, on behalf of themselves and all others similarly
situated, Plaintiffs, v. CenturyLink, Inc., CenturyTel Broadband
Services, LLC, CenturyLink Communications, LLC, CenturyLink Public
Communications Inc., CenturyLink Sales Solutions, Inc., CenturyTel
of Minnesota, Inc., PTI Communications of Minnesota, Inc., Embarq
Minnesota Inc., Qwest Broadband Services, Inc., and Qwest
Corporation, Defendants, Case No. 17-cv-05001, (D. Minn., November
3, 2017), seeks actual, consequential, statutory and incidental
losses and damages, punitive damages, attorneys' fees, prejudgment
interest on all amounts awarded, costs of suit and such other and
further relief resulting from unjust enrichment and consumer
fraud.
Plaintiff is a CenturyLink customer for their internet service.
They claim to be unjustly charged for services that they did not
avail of and/or did not agree to.
CenturyLink is a global communications and IT services company
focused on network and data systems management, big data
analytics, managed security services, hosting, cloud and IT
consulting services. PTI Communications of Minnesota, Inc., Embarq
Minnesota Inc., Qwest Broadband Services, Inc. and Qwest
Corporation conduct business in Minnesota as "CenturyLink" and
hold themselves out to the public as such, using the same common
logos and trademarks in letters, billings, marketing, and
advertisements directed to the public. [BN]
Plaintiff is represented by:
Daniel E. Gustafson, Esq.
Daniel C. Hedlund, Esq.
David A. Goodwin, Esq.
GUSTAFSON GLUEK PLLC
Canadian Pacific Plaza
120 South Sixth Street, Suite 2600
Minneapolis, MN 55402
Telephone: (612) 333-8844
Facsimile: (612) 339-6622
Email: dgustafson@gustafsongluek.com
dhedlund@gustafsongluek.com
dgoodwin@gustafsongluek.com
CREDIT SUISSE: Pomerantz Investigates Potential Securities Claims
-----------------------------------------------------------------
Pomerantz LLP is investigating claims on behalf of investors of
Credit Suisse Group A.G. ("Credit Suisse" or the "Company") (NYSE:
CS). Such investors are advised to contact Robert S. Willoughby
at rswilloughby@pomlaw.com or 888-476-6529, ext. 9980.
The investigation concerns whether Credit Suisse and certain of
its officers and/or directors have engaged in securities fraud or
other unlawful business practices.
On November 5, 2017, The Wall Street Journal reported that the
U.S. Department of Justice and the Federal Bureau of Investigation
are investigating Credit Suisse, along with other banks, "for
their roles in selling about $2 billion of debt for Mozambique."
The article stated, in part, that "[f]inancial regulators in the
U.S., the U.K. and Switzerland began probes into potential
securities-law violations by the banks last year, after The Wall
Street Journal reported the existence of irregularities in the
Mozambican transactions. The newer U.S. inquiries widen the scope
of the probes to include potential corruption and raise the
possibility of criminal prosecution."
On this news, Credit Suisse's American depositary receipt price
fell as much as $0.24, or 1.48%, during intraday trading on
November 6, 2017.
With offices in New York, Chicago, Los Angeles, and Paris, The
Pomerantz Firm -- http://www.pomerantzlaw.com-- concentrates its
practice in the areas of corporate, securities, and antitrust
class litigation. [GN]
DBMJ REHABILITATION: "No Cause of Action" Ruling Affirmed
---------------------------------------------------------
In the appeals case styled ESTATE OF LOREN ALEX GALLIVAN by JUNE
Y. GALLIVAN, Personal Representative, PHYLLIS E. BRIGGS, KARLA RAE
JAMIESON, and VERNON L. DUFF, and on Behalf of Themselves and All
Others Similarly Situated, Plaintiffs-Appellants/Cross-Appellees,
v. DBMJ REHABILITATION SERVICES, PLLC, d/b/a NEUROMUSCULAR AND
REHABILITATION ASSOCIATES OF NORTHERN MICHIGAN, STEPHEN ANDRIESE,
M.D., JAMES R. MACKENZIE, M.D., and RICHARD BALL, M.D.,
Defendants-Appellees/Cross-Appellants, and TRACY RIDDLE, D.O. and
JULIE GRONEK, M.D., Defendants, No. 331832 (Mich. App.),
Plaintiffs appeal as of right the judgment of no cause of action
entered in favor of defendants following the jury trial.
Defendants cross-appeal by right to challenge the trial court's
decisions to deny them partial summary disposition and directed
verdict.
In this class action suit, the named plaintiffs, and others
similarly situated in Michigan, received preservative free
Methylprednisolone Acetate (PF-MPA) epidural steroid injections
that were contaminated with a fungus, Exserohilium rostratum. The
contaminated vials of PF-MPA were produced by the New England
Compounding Center (NECC), ordered by defendant physician James R.
Mackenzie, M.D., and sold and administered to plaintiffs in 2012
by defendant DBMJ Rehabilitation Services, PLLC. Plaintiffs
suffered fungal infections, and some plaintiffs died.
Ordinary Negligence Claim
Plaintiffs first challenge the summary dismissal of their ordinary
negligence claim under MCR 2.116(C)(7).
Plaintiffs do not dispute that their additional claim, that
defendants failed to ensure the sterility of PF-MPA injections,
occurred within the course of a physician-patient relationship.
They argue instead that expert testimony would not be required for
the jury to understand how defendants violated MCL 333.17751(1) by
purchasing PF-MPA in bulk from the NECC without patient-specific
prescriptions. This argument is based on a theory of strict
liability that is not cognizable in either ordinary negligence or
medical malpractice. As to any argument that violation of the
statute was itself evidence of negligence, MCL 333.17745 applies
to pharmacists and not physicians and therefore, ascribes no duty
to these defendants.
Medical Malpractice Claim
Defendants and Dr. Ball, individually, moved the trial court for
summary disposition under MCR 2.116(C)(10) and, later, for a
directed verdict.
MCR 2.116(C)(10) tests the factual support of a plaintiff's claim.
The court considers the affidavits, pleadings, depositions,
admissions, and other documentary evidence submitted or filed in
the action to determine whether a genuine issue of any material
fact exists to warrant a trial. A genuine issue of material fact
exists when the record, giving the benefit of reasonable doubt to
the opposing party, leaves open an issue upon which reasonable
minds might differ.
Dr. Ball also moved the trial court for partial summary
disposition under MCR 2.116(C)(10) and a directed verdict on the
failure to present evidence as to any physician-patient
relationship with him. Based on the evidence presented at the time
of the motion for summary disposition, the Court of Appeals of
Michigan concludes the trial court did not err in denying Dr. Ball
summary disposition as to causation because a question of fact
existed as to whether Dr. Ball's choice of the NECC and assent to
defendants' purchasing practices were reasonable or violated the
standard of care.
The appeals court also concludes that the record does not offer
support for the existence of a physician-patient relationship
between Dr. Ball and any of the plaintiffs. Lack of a physician-
patient relationship should have caused the court to render a
directed verdict in Dr. Ball's favor, because failure to prove any
one of the elements in a medical malpractice case is fatal. The
final disposition of this case in defendants' favor however makes
this issue moot.
The Statute of Repose
MCR 2.116(C)(7) permits summary disposition where a claim is
statutorily barred.
In defense of their failure to vet claim, plaintiffs argue that
defendants had an ongoing duty to vet the NECC with each
subsequent purchase of PF-MPA. Kincaid, 300 Mich.App. 513.
Plaintiffs contend that in accord with Kincaid, they were able to
surmount summary disposition upon showing that a question of fact
existed as to whether defendants' continued reliance on the NECC
was unreasonable.
The appeals court agrees.
Plaintiffs pled specific facts that after defendants' 2003
decision to choose the NECC as its supplier, information became
widely known as to the risks associated with compounded drugs.
Defendants did not submit documentation to contradict these
developments in the medical community. When the contents of the
complaint are accepted as true, plaintiffs' complaint allegations
pled facts that would establish that the continued adherence at
the later point constituted a breach of the duty owed to the
plaintiff.
Accordingly, plaintiffs' failure to vet claim was not barred by
the statute of repose.
Evidentiary Issues
Plaintiffs challenge the trial court's determination of the
relevancy of three pieces of evidence: 1) the NECC customer list,
2) testimony as to FDA recalls, and 3) testimony as to NECC
inspection reports.
The NECC Customer List
Plaintiffs argue that the court erred in admitting the NECC
customer list because it was unfairly prejudicial, lacked
foundation, and was a hearsay document for which there was no
exception. Defendants do not dispute that the NECC customer list
was hearsay. Rather, they argue that the list was admissible under
MRE 803(8).
The appeals court agrees with plaintiffs that the report was not
authenticated prior to its admission in either instance. The
requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its
proponent claims.
A public record or report is authenticated when there is evidence
that the writing is authorized by law to be recorded or filed and
in fact recorded or filed in a public office, or a purported
public record, report, statement, or data compilation, in any
form, is from the public office where items of this nature are
kept. This was never done.
However, plaintiffs cannot demonstrate that their substantial
rights were affected when they also admitted printouts purportedly
from the FDA official website without additional authentication.
FDA Recalls
Plaintiffs contend that defendants were allowed to argue the
recalls of specific FDA approved drugs in opening statement
despite no evidence of recalls being introduced.
The court did not find bad faith on the part of the defense in
this regard and based upon the record below, neither can the
appeals court. The ruling removed the theory from the jury, came
after extensive intervening testimony between the unsupported
contention and opening statement, and was not an abuse of
discretion. Defendants followed the court's instruction in closing
argument and did not mention those specific drug recalls.
Plaintiffs argued the absence of supporting evidence to their
advantage. Plaintiffs fail to illustrate how their substantial
rights were affected.
Inspection Reports
The court ruled the testimony that the NECC was inspected and not
shut down was admissible, but the inspection reports themselves
were inadmissible under MRE 803(8) for lack of authentication.
This ruling was not an abuse of discretion. Plaintiffs continue to
argue that both doctors were mistaken about their knowledge of the
reports because neither was given those reports to review.
Plaintiffs' argument however, does not preclude either doctor from
having knowledge of the inspections independent of his retainer.
Further, plaintiffs argued the absence of evidence to the jury.
Under these circumstances, plaintiffs' substantial rights were not
affected.
The appeals court affirmed.
A full-text copy of the state appeals court's November 2, 2017
Opinion is available at http://tinyurl.com/y8j4yal8from
Leagle.com.
ROBERT B. SICKELS -- sickels@sommerspc.com -- for JUNE Y.
GALLIVAN, PERSONAL REPRESENTATIVE, Plaintiff-Appellant-Cross-
Appellee.
MICHAEL J. COOK -- CookMJ@aol.com -- DBMJ REHABILITATION SERVICES
PLLC, Defendant-Appellee-Cross-Appellant.
TIMOTHY J. DARDAS -- TDardas@hackneygrover.com -- for DBMJ
REHABILITATION SERVICES PLLC, Defendant-Appellee-Cross-Appellant.
DONALD TRUMP: Plaintiffs in Wash. EO-2 Suit Allowed to File TAC
---------------------------------------------------------------
The United States District Court for the Western District of
Washington, Seattle, issued an Order to Lift Stay of Proceedings
and Permit Plaintiffs to File Third Amended Complaint in the case
captioned John Doe, Jack Doe, Jason Doe, Joseph Doe and James Doe,
individually, and on behalf of all others similarly situated; the
Episcopal Diocese of Olympia, and the Council on American Islamic
Relations-Washington, Plaintiffs, v. Donald Trump, President of
The United States; U.S. Department of State; Rex Tillerson,
Secretary of State; U.S. Department of Homeland Security; John
Kelly, Secretary of Homeland Security; U.S. Customs and Border
Protection; Kevin McAleenan, Acting Commissioner of U.S. Customs
and Border Protection; and Michele James, Field Director of the
Seattle Field Office of U.S. Customs and Border Protection,
Defendants, No. 2:17-cv-00178-JLR (W.D. Wash.).
Plaintiffs seek to lift the stay of the proceedings in this case
to amend their complaint to add allegations regarding the
September 24, 2017, Presidential Proclamation titled "Enhancing
Vetting Capabilities and Processes for Detecting Attempted Entry
into the United States by Terrorists or Other Public-Safety
Threats;" the October 23, 2017, Memorandum to the President titled
"Resuming the United States Refugee Admissions Program with
Enhanced Vetting Capabilities" issued by the Secretary of State,
Acting Secretary of Homeland Security, and Director of National
Intelligence; and the October 24, 2017, Executive Order 13,815,
titled "Resuming the United States Refugee Admissions Program with
Enhanced Vetting Capabilities" issued by the President.
Plaintiffs also intend to file a motion for a preliminary
injunction challenging the portions of the October 23 Agency Memo
relating to the derivative refugee admissions process.
Plaintiffs will not seek to enjoin the Proclamation at this time
due to the already pending challenges in Trump v. IRAP, ___ S.Ct.
___, No. 16-1436, 2017 WL 4518553, and Trump v. Hawaii, ___ S.Ct.
___, No. 16-1540, 2017 WL 4782860.
A full-text copy of the District Court's November 2, 2017 Order is
available at http://tinyurl.com/ycas8va4from Leagle.com.
John Doe, Plaintiff, represented by Alison Chase --
achase@kellerrohrback.com -- KELLER ROHRBACK LLP, pro hac vice.
John Doe, Plaintiff, represented by Alison Gaffney --
agaffney@kellerrohrback.com -- KELLER ROHRBACK, Amy C. Williams-
Derry -- awilliams-derry@kellerrohrback.com -- KELLER ROHRBACK,
Derek W. Loeser -- dloeser@kellerrohrback.com -- KELLER ROHRBACK,
Emily Chiang -- echiang@aclu-wa.org -- ACLU OF WASHINGTON, Laurie
B. Ashton -- lashton@kellerrohrback.com -- KELLER ROHRBACK LLP,
pro hac vice, Tana Lin -- tlin@kellerrohrback.com -- KELLER
ROHRBACK & Lynn Lincoln Sarko -- lsarko@kellerrohrback.com --
KELLER ROHRBACK.
Episcopal Diocese of Olympia, Plaintiff, represented by Alison
Chase, KELLER ROHRBACK LLP, pro hac vice, Alison Gaffney, KELLER
ROHRBACK, Amy C. Williams-Derry, KELLER ROHRBACK, Derek W. Loeser,
KELLER ROHRBACK, Emily Chiang, ACLU OF WASHINGTON, Laurie B.
Ashton, KELLER ROHRBACK LLP, pro hac vice, Tana Lin, KELLER
ROHRBACK & Lynn Lincoln Sarko, KELLER ROHRBACK.
Joseph Doe, Plaintiff, represented by Alison Gaffney, KELLER
ROHRBACK & Tana Lin, KELLER ROHRBACK.
James Doe, Plaintiff, represented by Alison Gaffney, KELLER
ROHRBACK & Tana Lin, KELLER ROHRBACK.
Council on American Islamic Relations -- Washington, Plaintiff,
represented by Alison Gaffney, KELLER ROHRBACK & Tana Lin, KELLER
ROHRBACK.
Jack Doe, Plaintiff, represented by Alison Gaffney, KELLER
ROHRBACK & Tana Lin, KELLER ROHRBACK.
Jason Doe, Plaintiff, represented by Alison Gaffney, KELLER
ROHRBACK & Tana Lin, KELLER ROHRBACK.
Jeffrey Doe, Plaintiff, represented by Tana Lin, KELLER ROHRBACK.
Donald Trump, Defendant, represented by Arjun Garg, US DEPT. OF
JUSTICE CIVIL DIVISION & Michelle R. Bennett, US DEPARTMENT OF
JUSTICE CIVIL DIVISION FEDERAL PROGRAMS
U.S. Department of State, Defendant, represented by Arjun Garg, US
DEPT. OF JUSTICE CIVIL DIVISION.
U.S. Department of State, Defendant, represented by Michelle R.
Bennett, US DEPARTMENT OF JUSTICE CIVIL DIVISION FEDERAL PROGRAMS
Rex Tillerson, Defendant, represented by Arjun Garg, US DEPT. OF
JUSTICE CIVIL DIVISION.
Rex Tillerson, Defendant, represented by Michelle R. Bennett, US
DEPARTMENT OF JUSTICE CIVIL DIVISION FEDERAL PROGRAMS
U.S. Department of Homeland Security, Defendant, represented by
Arjun Garg, US DEPT. OF JUSTICE CIVIL DIVISION.
U.S. Department of Homeland Security, Defendant, represented by
Michelle R. Bennett, US DEPARTMENT OF JUSTICE CIVIL DIVISION
FEDERAL PROGRAMS
John Kelly, Defendant, represented by Arjun Garg, US DEPT. OF
JUSTICE CIVIL DIVISION.
John Kelly, Defendant, represented by Michelle R. Bennett, US
DEPARTMENT OF JUSTICE CIVIL DIVISION FEDERAL PROGRAMS
U.S. Customs and Border Protection, Defendant, represented by
Arjun Garg, US DEPT. OF JUSTICE CIVIL DIVISION.
U.S. Customs and Border Protection, Defendant, represented by
Michelle R. Bennett, US DEPARTMENT OF JUSTICE CIVIL DIVISION
FEDERAL PROGRAMS
Kevin McAleenan, Defendant, represented by Arjun Garg, US DEPT. OF
JUSTICE CIVIL DIVISION.
Kevin McAleenan, Defendant, represented by Michelle R. Bennett, US
DEPARTMENT OF JUSTICE CIVIL DIVISION FEDERAL PROGRAMS
Michele James, Defendant, represented by Arjun Garg, US DEPT. OF
JUSTICE CIVIL DIVISION.
Michele James, Defendant, represented by Michelle R. Bennett, US
DEPARTMENT OF JUSTICE CIVIL DIVISION FEDERAL PROGRAMS
ELECTROLUX HOME: "Mendoza" Consumer Suit Transferred to Pa. Court
-----------------------------------------------------------------
The United States District Court for the Eastern District of
California issued an Order granting Defendant's Motion to Transfer
the case captioned ERIKA MENDOZA and JAMES HUNT, individually and
on behalf of all others similarly situated, Plaintiffs, v.
ELECTROLUX HOME PRODUCTS, INC., Defendant, Case No. 1:17-cv-00839-
LJO-SKO (E.D. Cal.).
Electrolux moves under 28 U.S.C. Section 1404(a) to transfer the
case to the United States District Court for the Middle District
of Pennsylvania.
This is a putative consumer class action alleging that certain
over-the-range microwave ovens sold by Electrolux Home Products,
Inc., contain defective stainless-steel handles that heat to
excessive temperatures when the cooking surface below is in use.
Plaintiff Erika Mendoza lives in Modesto, California, and alleges
she purchased a microwave containing a defective handle at a
Direct Appliance store in Modesto. Plaintiff James Hunt lives in
Bakersfield, California, and alleges he purchased a microwave
containing a defective handle at a Lowe's store in Bakersfield.
Prior to Plaintiffs' commencement of the suit in a California
state court, Plaintiffs' counsel filed a consolidated amended
class action complaint in federal court in the Middle District of
Pennsylvania, Rice v. Electrolux Home Products, Inc., Case No.
4:15-cv-00371-MWB (M.D. Pa.).
Plaintiffs' counsel filed another putative class action against
Electrolux, this time in federal court in the District of
Maryland, on behalf of named plaintiff Alex Kukich, styled Kukich
v. Electrolux Home Products, Inc., Case No. 1:16-cv-03412-ELH (D.
Md.).
Electrolux moved to transfer the Kukich case to the Middle
District of Pennsylvania pursuant to Section 1404(a) for handling
by Judge Brann. The District of Maryland granted the motion to
transfer, finding that "the balance of factors strongly supports
the transfer of this case to the Middle District of Pennsylvania."
Following the transfer of the Kukich action to the Middle District
of Pennsylvania, Judge Brann ordered the parties, pursuant to a
stipulation, to file a consolidated complaint that consolidated
the Rice and Kukich cases. Rice and Kukich filed a consolidated
amended class action complaint, seeking to represent a Rule
23(b)(2) class consisting of all persons in the United States who
own a "Microwave with a Handle Defect."
Title 28 U.S.C. Section 1404(a) provides that for the convenience
of parties and witnesses, in the interest of justice, a district
court may transfer any civil action to any other district or
division where it might have been brought or to any district or
division to which all parties have consented. The purpose of this
section is to prevent the waste of time, energy and money and to
protect litigants, witnesses and the public against unnecessary
inconvenience and expense.
Plaintiffs contend that venue is not proper in the Middle District
of Pennsylvania because no out of state plaintiffs or claims are
present in this case and it is limited to a California class of
consumers asserting California state law claims, with no national
class alleged.
Under 28 U.S.C. Section 1391(b)(1), venue lies in a judicial
district in which any defendant resides, if all defendants are
residents of the State in which the district is located. An entity
resides in any judicial district in which such defendant is
subject to the court's personal jurisdiction with respect to the
civil action in question. Pursuant to Pennsylvania law, general
personal jurisdiction exists over a business if the business
qualifies as a foreign corporation in the state Electrolux is
registered as a foreign corporation in Pennsylvania.
Personal jurisdiction exists over Electrolux in Pennsylvania and
venue is proper in the Middle District of Pennsylvania.
In evaluating the parties' convenience, the Court considers
Plaintiffs' choice of forum, the parties' contacts with the forum,
and the contacts relating to Plaintiffs' claims in the chosen
forum.
This case was filed originally in Stanislaus County Superior
Court, which is within the Eastern District of California. It is
undisputed that Plaintiffs both reside and purchased the
microwaves with the allegedly defective handles in this district.
Plaintiffs' complaint alleges claims under California state law
based on conduct that allegedly occurred within California.
In support of their Opposition, Plaintiffs provide evidence that
Electrolux has over 65 retail locations and at least five service
locations in and around Modesto and Bakersfield, where Plaintiffs
reside. In addition, Electrolux claims in its Notice of Removal
that it shipped over 200,000 over-the-range microwaves containing
stainless steel handles to retailers located within California for
sale to consumers" during the putative class period.
This is not an action where all the operative facts occurred
elsewhere, or where the forum has no interest in the parties or
subject matter. The Court thus concludes that Plaintiffs' choice
of forum is entitled to more than minimal consideration, and the
convenience of the parties weighs, albeit slightly, against a
transfer of venue.
The convenience of witnesses can be one of the most important
factors in determining whether a transfer of venue is appropriate.
Both parties fail to specifically identify any third-party
witnesses they may seek to depose or call at trial, the nature of
the witnesses' testimony, and the materiality of that testimony to
the issues in the case. Because Plaintiff seeks to certify a class
composed solely of persons in California who purchased a Microwave
with a stainless-steel handle many if not all of potential class
members who wish to testify are likely to reside in California,
and those witnesses would be inconvenienced by transfer to
Pennsylvania. But Plaintiffs fail to address Electrolux's
assertion regarding the inconvenience of witnesses, including
experts, testifying in two similar actions on opposite sides of
the country.
Therefore, like Judge Hollander in Kukich, the Court concludes
that this factor is neutral, weighing neither in favor of nor
against transfer.
Consideration of the interest of justice, which includes judicial
economy, may be determinative to a particular transfer motion,
even if the convenience of the parties and witnesses might call
for a different result. Evaluating the interest of justice, the
Court considers the ease of access to evidence; familiarity of the
forums with the applicable law; and the differences in litigation
in each forum, including court congestion and time of trial.
Any difficulties in accessing the evidence must be more
significant than those that can be overcome by the availability of
electronic data transfer. Here, Electrolux does not specifically
identify any of the substantial discovery, nor does it explain
what hardship it would suffer by transporting or producing the
over 40,000 pages of documents to a different district than where
they were produced. Indeed, Electrolux acknowledges that these
documents were produced in Pennsylvania to the same counsel that
represents Plaintiffs here in this district. This factor is
therefore neutral with respect to the question of whether transfer
of the action is appropriate.
The pendency of related actions in the transferee forum is a
significant factor in considering the interest of justice factor.
The purpose of transfer under Section 1404(a) is to eliminate
duplication in discovery, avoid conflicting rulings and schedules,
reduce litigation cost, and save time and effort of the parties,
the attorneys, the witnesses, and the courts. It is clear that
the transferee forum is already quite familiar with the facts and
law governing the instant case, and that it and the Rice
consolidated action involve very similar questions of law and
fact, the resolution of which will involve much of the same
evidence and testimony.
Requiring this Court to start this litigation anew would lead to
the "wastefulness of time, energy and money that Section 1404(a)
was designed to prevent." To permit a situation in which two cases
involving precisely the same issues are simultaneously pending in
different District Courts leads to the wastefulness of time,
energy and money that Section 1404(a) was designed to prevent.
The Court thus agrees with Electrolux that the pendency of similar
litigation strongly favors transfer to the Middle District of
Pennsylvania.
The Court concludes that the convenience and justice inquiry
favors transferring this case. While some of the operative facts
underlying this action occurred in California and Plaintiffs wish
to litigate in California, on balance, the countervailing
considerations substantially outweigh these factors.
The differences between the Rice consolidated action and this case
are not significant enough to outweigh the substantial judicial
economy that transfer would accord. As Judge Hollander stated in
Kukich, "There is no need to burden two courts with virtually
identical lawsuits. Rather, this action should be heard by the
court that is already familiar with the issues to conserve
judicial resources and to prevent inconsistent rulings."
The Court orders that Electrolux's motion to transfer venue to the
Middle District of Pennsylvania is granted.
A full-text copy of the District Court's November 2, 2017 Order is
available at http://tinyurl.com/yaabj5e2from Leagle.com.
Erika Mendoza, Plaintiff, represented by A. Chowning Poppler --
cpoppler@bermantabacco.com -- Berman Tabacco.
Erika Mendoza, Plaintiff, represented by Charles J. Kocher --
ckocher@smbb.com -- Saltz Mongeluzzi Barrett & Bendesky, P.C., pro
hac vice, Christopher Heffelfinger --
cheffelfinger@bermantabacco.com -- Berman Tabacco & Simon Bahne
Paris -- sparis@smbb.com -- Saltz Mongeluzzi Barrett & Bendesky,
P.C., pro hac vice.
James Hunt, Plaintiff, represented by A. Chowning Poppler, Berman
Tabacco, Charles J. Kocher, Saltz Mongeluzzi Barrett & Bendesky,
P.C., pro hac vice & Christopher Heffelfinger, Berman Tabacco.
Electrolux Home Products, Inc., Defendant, represented by Loly G.
Tor -- tor@klgates.com -- K&L Gates LLP, pro hac vice, Michael S.
Nelson -- michael.nelson@klgates.com -- K&L Gates LLP, pro hac
vice, Patrick J. Perrone -- pperrone@klgates.com -- K&L Gates LLP,
pro hac vice & Caitlin Comstock Blanche --
caitlin.blanche@klgates.com -- K&L Gates LLP.
EQUIFAX INC: Oklahoma Attorney Files Data Breach Class Action
-------------------------------------------------------------
Tiffany Liou, writing for NEWS 9, reports that an Oklahoma City
attorney has filed a class action lawsuit against Equifax.
The consumer credit reporting agency announced a data breach in
September 2017. Over 145 million Americans are impacted. Attorney
Austin Reams says 2.8 million Oklahomans are at risk, which is
over half the state's population.
"What happens 20 years from now, when their identity is taken over
or their bank accounts are cleaned out? Equifax may not even exist
then," said Mr. Reams. He is skeptical of the actions the bureau
has taken since the breach.
Mr. Reams noted the company's executives selling stock just days
after they learned about it. "I'm very suspicious of anything
that Equifax might be doing."
Mr. Reams filed a class action lawsuit on behalf of all Oklahomans
impacted. He estimates it could cost as much as $200 a year for
each victim to protect him or herself from identity theft. "$200
times 145 million. That's $29 billion." He believes Equifax
should cover that bill.
Mr. Reams said, "We want to make sure that Equifax pays for and
puts forth meaningful identity protection services, things that
are going to protect people not just five years into the future,
but 20 years into the future or more."
He also wants an independent audit conducted to show why the data
breach happened in the first place.
For information on the class action lawsuit, contact Reams Law in
Oklahoma City. [GN]
EQUIFAX INC: Legal Officer's Role in Data Breach Investigated
--------------------------------------------------------------
John McCrank, writing for Reuters, reports that a special
committee of Equifax Inc's board is investigating the role the
credit reporting company's chief legal officer played in approving
share sales by four executives days after suspicious activity was
discovered in its systems, according to The Wall Street Journal.
Three of the four executives sold a total of $1.8 million of
Equifax stock in early August, days after the company discovered
what ended up being one of the largest data breaches in U.S.
history, compromising the sensitive financial information of 145.5
million people.
When Equifax later disclosed the breach to the public, the
company's shares plunged as much as 37 percent, erasing billions
of dollars from its market value.
The special committee, made up of independent directors, on
Nov. 3 said it concluded that the executives did not know of the
suspicious cyber activity at the time they sold the shares and
that no insider trading occurred.
Now the committee is looking into the level of knowledge
John Kelley, Equifax's chief legal officer, who was also in charge
of security at the firm, had of the hack at the time he approved
the stock sales, the Journal said, citing sources familiar with
the matter. (on.wsj.com/2zhkzSp)
Mr. Kelley is no longer in charge of security, the Journal said.
Equifax did not immediately respond to email and voicemail
requests for comment. An Equifax employee reached by phone at the
company's main line declined to forward the call to Mr. Kelley.
The U.S. Justice Department is conducting its own criminal
investigation into the share sales.
The hack, and Equifax's response to it, has also prompted
investigations by multiple federal and state agencies as well as
scores of class action lawsuits.
Credit monitoring services such as Equifax collect vast amounts of
financial information from consumers, working with banks and other
lenders, for example, to track the creditworthiness of
individuals. [GN]
ERIN ENERGY: Dismissal of "Lenois" Suit Appealed to Delaware S.C.
-----------------------------------------------------------------
Plaintiff Robert Lenois filed an appeal from the Memorandum
Opinion dismissing the claims against the Defendants entered on
November 7, 2017, in the lawsuit entitled ROBERT LENOIS, on behalf
of himself and all other similarly situated stockholders of ERIN
ENERGY CORPORATION, and derivatively on behalf of ERIN ENERGY
CORPORATION v. KASE LUKMAN LAWAL, LEE P. BROWN, WILLIAM J.
CAMPBELL, J. KENT FRIEDMAN, JOHN HOFMEISTER, IRA WAYNE McCONNELL,
HAZEL R. O'LEARY, and CAMAC ENERGY HOLDINGS, LIMITED, and ERIN
ENERGY CORPORATION, Case No. 11963-VCMR, in the Court of Chancery
of the State of Delaware .
As previously reported in the Class Action Reporter on Nov. 17,
2017, the Hon. Tamika Montgomery-Reeves dismissed the case.
The case arises out of transactions between an oil and gas
exploration company (Erin), its controller (Kase Lukman Lawal), a
controller-affiliated company (Allied Energy Plc), and a third-
party entity (Public Investment Corp., Ltd. "PIC"). In the
transactions at issue, PIC invested in Erin, and Erin transferred
stock to PIC. Erin then transferred to Allied the majority of the
PIC cash, a convertible subordinated note, Erin stock, and a
promise of certain future payments related to the development of a
new oil discovery, in exchange for certain Allied oil mining
rights. The other stockholders in the Company also received
additional shares in connection with the Transactions.
The appellate case is captioned as ROBERT LENOIS, on behalf of
himself and all other similarly situated stockholders of ERIN
ENERGY CORPORATION, and derivatively on behalf of ERIN ENERGY
CORPORATION v. KASE LUKMAN LAWAL, LEE P. BROWN, WILLIAM J.
CAMPBELL, J. KENT FRIEDMAN, JOHN HOFMEISTER, IRA WAYNE McCONNELL,
HAZEL R. O'LEARY, and CAMAC ENERGY HOLDINGS, LIMITED, and ERIN
ENERGY CORPORATION, Case No. 482,2017, in the Supreme Court of the
State of Delaware.[BN]
The Plaintiff-Appellant is represented by:
Stuart M. Grant, Esq.
Michael J. Barry, Esq.
GRANT & EISENHOFER P.A.
123 S. Justison Street
Wilmington, DE 19801
Telephone: (302) 622-7000
E-mail: sgrant@gelaw.com
mbarry@gelaw.com
- and -
Peter B. Andrews, Esq.
Craig J. Springer, Esq.
ANDREWS & SPRINGER LLC
3801 Kennett Pike, Building C, Suite 305
Wilmington, DE 19807
Telephone: (302) 504-4957
E-mail: pandrews@andrewsspringer.com
cspringer@andrewsspringer.com
- and -
Jeremy Friedman, Esq.
Spencer Oster, Esq.
David Tejtel, Esq.
FRIEDMAN OSTER & TEJTEL PLLC
240 East 79th Street, Suite A
New York, NY 10075
Telephone: (888) 529-1108
E-mail: jfriedman@fotpllc.com
soster@fotpllc.com
dtejtel@fotpllc.com
The Defendants-Appellees are represented by:
David J. Teklits, Esq.
Kevin M. Coen, Esq.
Glenn R. McGillivray, Esq.
MORRIS, NICHOLS, ARSHT & TUNNELL LLP
1201 N. Market Street
Wilmington, DE 19801
Telephone: (302) 351-9292
Facsimile: (302) 498-6212
E-mail: dteklits@mnat.com
kcoen@mnat.com
gmcgillivray@mnat.com
- and -
Myron T. Steele, Esq.
Arthur L. Dent, Esq.
Jaclyn C. Levy, Esq.
POTTER ANDERSON & CORROON LLP
Hercules Plaza, 6th Floor
1313 North Market Street
Wilmington, DE 19801
Telephone: (302) 984-6030
Facsimile: (302) 778-6030
E-mail: msteele@potteranderson.com
adent@potteranderson.com
jlevy@potteranderson.com
- and -
Gregory V. Varallo, Esq.
RICHARDS, LAYTON & FINGER, P.A.
One Rodney Square
920 North King Street
Wilmington, DE 19801
Telephone: (302) 651-7772
Facsimile: (302) 498-7701
E-mail: varallo@rlf.com
FINISAR CORP: Court Issues Order re Discovery in Securities Suit
----------------------------------------------------------------
The United States District Court for the Northern District of
California, San Jose Division, issued an Order regarding Discovery
Dispute Joint Report No.1 in the case captioned In re FINISAR
CORPORATION SECURITIES LITIGATION, Case No. 5:11-cv-01252-EJD
(HRL) (N.D. Cal.).
In Discovery Dispute Joint Report #1, the plaintiff asks the court
to order the deposition of Finisar's Fed. R. Civ. P. 30(b)(6)
witness to go forward on November 8th, the date upon which it is
noticed.
The deposition went forward on November 8th, but only on Topic 1
and the first half (first sentence) of Topic 2. This should give
the plaintiff the baseline it says it needs to understand what has
been produced and to map out further discovery. The deposition can
be resumed after completion of Finisar's rolling production, but
the court expects that production will be completed sooner rather
than later.
A full-text copy of the District Court's November 2, 2017 Order is
available at http://tinyurl.com/yc2pg3uffrom Leagle.com.
Martin Derchi-Russo, Plaintiff, represented by Catherine J.
Kowalewski -- katek@rgrdlaw.com -- Robbins Geller Rudman & Dowd
LLP.
Martin Derchi-Russo, Plaintiff, represented by Darren Jay Robbins
-- sd@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, David
Conrad Walton -- davew@rgrdlaw.com -- Robbins Geller Rudman & Dowd
LLP & Dennis J. Herman -- donnish@rgrdlaw.com -- Robbins Geller
Rudman & Dowd LLP.
Finisar Corporation, Defendant, represented by David Allen Priebe
-- david.priebe@dlapiper.com -- DLA Piper LLP (US), Diana Mariko
Maltzer -- diana.maltzer@dlapiper.com -- DLA Piper, Rajiv Sajjan
Dharnidharka -- rajiv.dharnidharka@dlapiper.com -- DLA Piper US
LLP, Roy K. McDonald -- roy.mcdonald@dlapiper.com -- McDermott
Will & Emery LLP & Shirli Fabbri Weiss --
shirli.weiss@dlapiper.com -- DLA Piper LLP.
Jerry S. Rawls, Defendant, represented by David Allen Priebe --
david.priebe@dlapiper.com -- DLA Piper LLP, Diana Mariko Maltzer -
- diana.maltzer@dlapiper.com -- DLA Piper, Rajiv Sajjan
Dharnidharka, DLA Piper US LLP, Roy K. McDonald, McDermott Will &
Emery LLP & Shirli Fabbri Weiss, DLA Piper LLP.
Eitan Gertel, Defendant, represented by David Allen Priebe, DLA
Piper LLP, Diana Mariko Maltzer, DLA Piper, Rajiv Sajjan
Dharnidharka, DLA Piper US LLP, Roy K. McDonald, McDermott Will &
Emery LLP & Shirli Fabbri Weiss, DLA Piper LLP.
Kurt Adzema, Defendant, represented by David Allen Priebe, DLA
Piper LLP, Diana Mariko Maltzer, DLA Piper, Rajiv Sajjan
Dharnidharka, DLA Piper US LLP, Roy K. McDonald, McDermott Will &
Emery LLP & Shirli Fabbri Weiss, DLA Piper LLP.
Daniel Levy, Movant, represented by Reed R. Kathrein --
reed@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP.
Oklahoma Firefighters Pension and Retirement System, Movant,
represented by Ian David Berg, Abraham, Fruchter & Twersky, LLP,
Mitchell M.Z. Twersky, Abraham Fruchter Twersky LLP, pro hac vice,
Takeo A. Kellar, Abraham, Fruchter & Twersky, LLP & Ximena R.
Skovron, Abraham Fruchter Twersky LLP, pro hac vice, El Camino
Real, Suite 100, San Diego, CA 92130
Hetal Patel, Movant, represented by Michael M. Goldberg, Goldberg
Law PC, 31 East 32nd Street, 4th Floor New York, NY 10016
FLORIDA: Class Certification Reversed in Toll Suit Against DOT
--------------------------------------------------------------
Nathan Hale, writing for Law360, reports that a Florida state
appeals court reversed class certification on Nov. 6 in a truck
trailer leasing company's class action challenging how the Florida
Department of Transportation collects tolls through its "toll-by-
plate" cashless system, finding the trial court improperly granted
a broader class than the company sought.
The First District Court of Appeal rejected the agency's argument
that the trial court had decided the merits of Tropical Trailer
Leasing LLC's claim, but found both that the company had
improperly tried to broaden the definition of its proposed class
in its motion for class certification and that Leon County Circuit
Judge Karen Grievers abused her discretion by approving a class
that exceeded the scope of the description in the amended
complaint.
"Expanding a class beyond what was pled in the complaint unfairly
surprised the department, because it was not on notice to defend
against such a broad class definition," the appeals panel said,
adding, "Further, the procedural requirements are in place to
ensure and protect the parties' right to due process."
The suit from Tropical Trailer, a company that leases truck
trailers to third parties, is challenging FDOT's current method
for assessing tolls for towed trailers, saying that in certain
scenarios, the department improperly assesses tolls on trailer
owners instead of the towing vehicles.
Tolls traditionally had been imposed on the vehicle pulling the
trailer, but when cashless systems were implemented, the state
began relying either on SunPass transponders in vehicles or a
"toll-by-plate" system in which a camera at the toll captures a
photograph of the license plate and a bill is sent through the
mail.
At some tolling locations, FDOT has only installed cameras that
capture the rear plates of vehicles, so at those locations or in
instances when the towing vehicle's front plate is not visible,
FDOT assesses the toll to the owner of the trailer, rather than
the owner of the towing vehicle, according to the opinion.
Tropical Trailer contends that trailers are not motor vehicles as
intended in the applicable law, so FDOT is interpreting the law
wrong by assessing tolls to trailer owners. While the company has
acknowledged that it can sometimes identify the owner of the
vehicle that was pulling its trailers to get reimbursed, it said
that many leasing contracts do not allow identification of the
driver and such an effort requires it to expend additional
resources to essentially collect the tolls for the state.
The parties have been sparring over the class definition for the
duration of the case, with FDOT asking the trial court to strike
the class definition in Tropical Trailer's initial complaint,
saying it was "absurd and grossly overbroad" because it would
include trailer owners who also owned the towing vehicle and
simply chose to use the toll-by-plate system, according to the
opinion.
Tropical Trailer amended its complaint, narrowing its allegations
to cover about 40 other trailer-leasing companies facing the same
situation that it does and specifically excluding trailer owners
who also own the towing vehicle, but in its motion for class
certification it proposed four classes, only one of which included
that exclusion.
Tropical Trailer based these proposals on its "contention that any
toll violation notice issued based upon the license plate of a
trailer is improper" and void from the start, according to the
opinion.
Judge Grievers chose to certify two subclasses, but they were
broader than Tropical Trailer had even requested, the First
District said, covering the owners of all trailers towed on roads
where FDOT used the toll-by-plate method for two different time
periods before and after a 2012 amendment that redefined "motor
vehicles" to include "trailers" in the applicable law.
Based on the definition adopted by the trial court, the class grew
exponentially from about 40 members in Tropical Trailer's amended
complaint to more than 180,000 members, the appeals court noted,
saying, "The massive expansion went far beyond the alleged class
definition Tropical Trailer pled in its amended complaint, to
which it was bound."
The First District made clear that it was not saying the class
definition could not be expanded after the amended complaint had
been filed, but proper procedure would be for the plaintiff to
amend the complaint and then move to certify the class under that
new definition.
Representatives for both parties did not immediately respond to
requests for comment late on Nov. 6.
District Judges Bradford L. Thomas, Joseph Lewis Jr. and Lori S.
Rowe sat for the First District.
FDOT is represented in-house by Clinton L. Doud, Ryan Scott
Bourgoin, George S. Reynolds IV and Marc A. Peoples.
Tropical Trailer is represented by Diane G. DeWolf --
diane.dewolf@akerman.com -- A. Rodgers Traynor Jr. --
rodger.traynor@akerman.com -- and Lawrence D. Silverman --
lawrence.silverman@akerman.com -- of Akerman LLP.
The case is Florida Department of Transportation et al. v.
Tropical Trailer Leasing LLC et al., case number 1D16-4586, in the
First District Court of Appeal of the State of Florida.
[GN]
GENERAL ELECTRIC: "Hachem" Sues Over Share Price Drop
-----------------------------------------------------
Jihad A. Hachem, individually and on behalf of all others
similarly situated, Plaintiff, v. General Electric, Inc., Jeffrey
R. Immelt, Jeffrey S. Bornstein and John L. Flannery, Defendants,
Case No. 17-cv-08457, (S.D. N.Y., November 1, 2017), seeks to
pursue remedies under the Securities Exchange Act of 1934.
General Electric is a globally diversified technology and
financial services company. The Company offers a wide variety of
products and services including aircraft engines, power
generation, water processing and household appliances.
Defendants failed to disclose that the company's various operating
segments, including its power segment, were underperforming with
order drops, excess inventories and increased costs. On this news,
during the following two days of trading, the General Electric
stock price fell nearly 7% or $1.51 per share on October 23, 2017,
on unusually heavy trading volume.
Hachem purchased General Electric securities and suffered losses
attributed to its misleading disclosures and/or material
omissions.
Plaintiff is represented by:
Lesley F. Portnoy, Esq.
GLANCY PRONGAY & MURRAY LLP
230 Park Ave, Suite 530
New York, NY 10169
Telephone: (212) 682-5340
Email: lportnoy@glancylaw.com
- and -
Lionel Z. Glancy, Esq.
Robert V. Prongay, Esq.
Charles H. Linehan, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
- and -
Ira M. Press, Esq.
Thomas Elrod, Esq.
KIRBY McINERNEY LLP
825 Third Avenue, 16th Floor
New York, NY 10022
Telephone: (212) 371-6600
GENERAL ELECTRIC: "Mirani" Sues Over Share Price Drop
-----------------------------------------------------
Gopal Mirani, individually and on behalf of all others similarly
situated, Plaintiff, v. General Electric, Inc., Jeffrey R. Immelt
and Jeffrey S. Bornstein, Defendants, Case No. 17-cv-08473, (S.D.
N.Y., November 1, 2017), seeks to recover damages caused by
violations of the federal securities laws and to pursue remedies
under Sections 10(b) and 20(a) of the Securities Exchange Act of
1934.
General Electric is a globally diversified technology and
financial services company. The Company offers a wide variety of
products and services including aircraft engines, power
generation, water processing and household appliances.
Defendants failed to disclose that the company's various operating
segments, including its power segment, were underperforming with
order drops, excess inventories and increased costs. On this news,
during the following two days of trading, the General Electric
stock price fell nearly 7% or $1.51 per share on October 23, 2017,
on unusually heavy trading volume.
Mirani purchased General Electric securities and suffered losses
attributed to its misleading disclosures and/or material
omissions.
Plaintiff is represented by:
Jeremy A. Lieberman, Esq.
J. Alexander Hood II, Esq.
Hui M. Chang, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: (212) 661-1100
Facsimile: (212) 661-8665
Email: jalieberman@pomlaw.com
ahood@pomlaw.com
hchang@pomlaw.com
- and -
Patrick V. Dahlstrom, Esq.
POMERANTZ LLP
10 South La Salle Street, Suite 3505
Chicago, IL 60603
Telephone: (312) 377-1181
Facsimile: (312) 377-1184
Email: pdahlstrom@pomlaw.com
- and -
Peretz Bronstein, Esq.
BRONSTEIN, GEWIRTZ & GROSSMAN, LLC
60 East 42nd Street, Suite 4600
New York, NY 10165
Tel: (212) 697-6484
Email: peretz@bgandg.com
HYATT HOTELS: Judge Dismisses Banquet Servers' Class Action
-----------------------------------------------------------
P.J. Dannunzio, writing for Law.com, reports that a federal judge
has dismissed a proposed class action of banquet servers against
Hyatt Hotels over alleged violations of the Pennsylvania Minimum
Wage Act.
U.S. District Judge Anita B. Brody of the Eastern District of
Pennsylvania granted Hyatt's motion for summary judgment Nov. 6.
In her opinion, Brody reasoned that the class representative
plaintiff did not present enough evidence to support her claims.
[GN]
IOWA: Wants Disabled Residents' Medicaid Class Action Tossed
------------------------------------------------------------
Tony Leys, writing for Des Moines Register, reports that the
departure of a controversial Medicaid management company should
block a federal lawsuit against Iowa's human-services director,
state lawyers say.
The lawsuit was filed in June on behalf of six Iowans with
disabilities, who argue that the state's shift to private
management of Medicaid led to illegal cuts to their in-home care
services. The plaintiffs say without those services, they could
be forced to move into nursing homes, violating their
constitutional rights. The lawsuit is being spearheaded by the
advocacy group Disability Rights Iowa, which has asked a federal
judge to declare the suit a class-action case on behalf of about
15,000 Iowans with disabilities.
But lawyers from the Iowa attorney general's office contend the
ground crumbled from beneath the lawsuit, when the management firm
AmeriHealth Caritas announced it would withdraw from Iowa's
Medicaid program because of a contract dispute. The state lawyers
noted in a court filing that AmeriHealth oversees Medicaid
benefits for all six initial plaintiffs in the Disability Rights
Iowa lawsuit. None have had their benefits overseen by the
remaining two managed-care companies, UnitedHealthcare and
Amerigroup.
"There is no evidence in the record that the issues complained of
by the plaintiffs relate to other managed care organizations," the
state lawyers wrote. ". . . A showing that unconstitutional
practices have taken place in the past is not enough. Plaintiffs
must show that such practices are likely to affect them in the
future." The state lawyers asked the judge to deny the
plaintiffs' requests for an injunction and a class-action
declaration.
Iowa shifted its $4 billion Medicaid program to private management
last year. Supporters, including Gov. Kim Reynolds, say the shift
is saving the state millions of dollars while leading to more
efficient care for the approximately 600,000 poor or disabled
Iowans who use the Medicaid program. Critics say the change has
led to red tape and arbitrary cuts in services, especially for
people with disabilities.
AmeriHealth has more than 200,000 Iowa clients, including the bulk
of Iowa Medicaid members who have serious disabilities. They are
to be shifted to UnitedHealthcare or Amerigroup at the end of this
month. Disability Rights lawyers declined comment on Nov. 6 on
the state's contention that AmeriHealth's departure from the state
should lead to dismissal of their lawsuit. They said they would
respond in court by Nov. 15.
The Disability Rights Iowa lawsuit was originally filed against
Reynolds and Charles Palmer, who was then director of the Iowa
Department of Human Services. Lawyers for the group later changed
the suit. Its sole named defendant is now Jerry Foxhoven, who
succeeded Palmer as department director in June.
The plaintiffs want U.S. District Judge Rebecca Goodgame Ebinger
to order Foxhoven to step in and change the way the managed-care
companies handle services for Iowans with disabilities. The
attorney general's office, which represents Foxhoven, has asked
the judge to dismiss the suit.
Judge Goodgame Ebinger recently presided over a daylong hearing on
the suit that at times became emotional.
Disability Rights Iowa called several witnesses to testify about
the effects of cuts in services paid for by Medicaid. One of them
was Melinda Fisher of Cedar Rapids, who has a severe form of
multiple sclerosis. "I cannot do anything by myself. I can only
lay in bed or sit in a chair," said Ms. Fisher, who testified from
her wheelchair.
Ms. Fisher, 62, said she needs extensive in-home assistance,
because she can't eat, bathe or go to the bathroom by herself. But
AmeriHealth ordered her daily in-home aide hours cut to two hours,
she testified. "I would be forced to go into a nursing home,
because I can't function on two hours a day," she said.
The judge also heard testimony from Beth Wargo of West Des Moines,
whose boyfriend, Neil Siegel, is one of the six plaintiffs in the
lawsuit. Siegel, 54, suffered a brain injury when a car hit him as
he bicycled in 2013. "He's 100 percent dependent on care for
everything he does," Mr. Wargo testified.
Mr. Wargo said she brought Siegel home after he was abused in a
care facility. Medicaid pays for in-home aides. "He's safe.
He's happier. He's better," she said. ". . . He knows who's
around him. He knows where he is."
As she testified, Mr. Siegel sat in his wheelchair in the back of
the courtroom, being comforted by supporters. He moaned, grunted
and cried out as Ms. Wargo recounted the cuts AmeriHealth had
ordered in the amount of in-home care it would finance under
Iowa's Medicaid program.
Later in the hearing, Assistant Attorney General Gretchen Kraemer
tried to cast doubt on Ms. Wargo's contention that all the in-home
services her boyfriend receives under Medicaid are crucial to his
health. Ms. Kraemer called to the stand Rebecca Cox, who worked
as an aide for Siegel. Cox testified that she was paid $19.45 per
hour, and spent much of her time at the home handling general
chores, including cleaning, doing laundry and making meals for
both Mr. Siegel and Ms. Wargo.
Near the end of the hearing, Assistant Attorney General Anagha
Dixit summed up the state's contention that its Medicaid program
can't afford to finance every service people with disabilities
could use at home. "That's an ideal world," she told the judge.
"It's a difference in want vs. need."
But Roxanne Conlin, a lawyer for the disabled plaintiffs, asked
the judge to let the suit against the state move forward as a
class action. "The law is being ignored, and we have no other way
in the world to fix it," she said.
The judge said she would rule later on the case. [GN]
IXYS CORP: Franchi Files Suit Over Merger with IXYS Corp.
---------------------------------------------------------
Adam Franchi, on behalf of himself and all others similarly
situated, Plaintiff, v. IXYS Corporation, Nathan Zommer, Uzi
Sasson, Donald L. Feucht, Samuel Kory, S. Joon Lee, Timothy A.
Richardson, James M. Thorburn, Kenneth D. Wong, Littelfuse, Inc.
and Iron Merger Co., Inc., Defendants, Case No. 17-cv-02667, (M.D.
Fla., November 6, 2017), seeks to enjoin defendants and all
persons acting in concert with them from proceeding with,
consummating, or closing the acquisition of IXYS Corporation by
Littelfuse, Inc. and its wholly-owned subsidiary, Iron Merger Co.,
Inc., rescinding it and setting it aside or awarding rescissory
damages in the event defendants consummate the merger.
The Plaintiff also seek costs of this action, including reasonable
allowance for attorneys' and experts' fees and such other and
further relief under the Securities Exchange Act of 1934.
Shareholders of IXYS will receive $23.00 in cash for each share of
IXYS they own or 0.1265 of a share of common stock of Littelfuse,
Inc. Based on the closing stock price of Littelfuse common stock
on August 25, 2017, the per share value of IXYS common stock
implied by the stock consideration was $22.55. Former IXYS
stockholders are expected to own only approximately 8% of the
outstanding shares of Littelfuse common stock and Littelfuse
stockholders immediately prior to the merger are expected to own
approximately 92% of the outstanding shares of Littelfuse common
stock.
IXYS is a multi-market integrated semiconductor company developing
high performance power semiconductors, advanced mixed-signal
integrated circuits, application specific integrated circuits and
radio frequency power semiconductors.
Defendants filed a proxy statement that failed to include
financial projections and valuation analyses performed by its
financial advisor, Needham & Company, LLC, critical to making
their decision on the said merger, says the Plaintiff. [BN]
Plaintiff is represented by:
Brian D. Long, Esq.
Gina M. Serra, Esq.
RIGRODSKY & LONG, P.A.
2 Righter Parkway, Suite 120
Wilmington, DE 19803
Tel: (302) 295-531
Facsimile: (302) 654-7530
Email: bdl@rl-legal.com
gms@rl-legal.com
- and -
Richard A. Maniskas, Esq.
RM LAW, P.C.
1055 Westlakes Dr., Ste. 3112
Berwyn, PA 19312
Tel: (484) 324-6800
K12 INC: Shareholders Amend Securities Class Action Complaint
-------------------------------------------------------------
Shareholder rights law firm Robbins Arroyo LLP on Nov. 6 disclosed
that shareholders amended their class action complaint filed
against K12 Inc. (NYSE: LRN). The complaint is brought on behalf
of all purchasers of K12 securities between October 10, 2013 and
October 27, 2015, for alleged violations of the Securities
Exchange Act of 1934 by K12's officers and directors. K12, a
technology-based education company, offers educational services to
facilitate individualized learning for students in kindergarten
through 12th grade in the United States and internationally.
View this information on the law firm's Shareholder Rights Blog:
www.robbinsarroyo.com/shareholders-rights-blog/k12-inc-nov-2017
K12 Accused of Hiding Major Contract Loss
According to the complaint, K12's largest revenue providing
school, the Agora Cyber Charter School, decided against renewing
its Managed Public School Contract with K12, which was scheduled
to terminate on June 30, 2015. Although K12 acknowledged in its
public filings that a change in its contract with Agora could
adversely affect the company's business, financial condition, and
results of operation, K12 concealed from investors Agora board's
decision not to renew the contract. After the loss of the
contract, on October 27, 2015, K12 reported disappointing
financial results for the quarter ended September 30, 2015
compared to the first quarter of fiscal year 2015, including
revenue of $221.2 million compared to $236.7 million and an
operating loss of $20.5 million compared to $13.2 million. When
news of the Agora decision became public, K12's stock fell 60%
from its class period high of $25.98 per share on June 23, 2014,
to close at $10.25 per share on October 27, 2015.
K12 Shareholders Have Legal Options
Concerned shareholders who would like more information about their
rights and potential remedies can contact attorney Leonid Kandinov
at (800) 350-6003, LKandinov@robbinsarroyo.com, or via the
shareholder information form on the firm's website.
Robbins Arroyo LLP -- http://www.robbinsarroyo.com-- is a
shareholder rights law firm. The firm represents individual and
institutional investors in shareholder derivative and securities
class action lawsuits. [GN]
LA ROCCA CONSTRUCTION: Blake Law Sues Over Illegally-Faxed Ads
--------------------------------------------------------------
Law Offices of Timothy Carl Blake, P.A., individually, and on
behalf of all others similarly situated, Plaintiff, v. La Rocca
Construction, Inc., Defendant, Case No. 17-cv-24036, (S.D. Fla.,
November 2, 2017), seeks statutory penalties plus pre-judgment
interest and allowable costs, penalties, interest, equitable
reasonable attorneys' fees and costs and equitable relief under
the Telephone Consumer Protection Act, as amended by the Junk
Facsimile Prevention Act of 2005.
La Rocca is a licensed certified general contractor based in
Broward County. Defendant sent a facsimile advertisement promoting
its industrial, commercial and residential contracting services
highlighting hurricane and rain storm damages. It failed to
contain an opt-out notice stating that the recipient may make a
request to the sender not to send any future faxes and that
failure to comply with the request within 30 days is unlawful,
says the complaint. [BN]
Plaintiff is represented by:
Shawn A. Heller, Esq.
Joshua A. Glickman, Esq.
SOCIAL JUSTICE LAW COLLECTIVE, PL
434 Skinner Blvd., #206
Dunedin, FL 34698
Tel: (305) 323-6433
Email: shawn@sjlawcollective.com
josh@sjlawcollective.com
- and -
Peter Bennett, Esq.
Richard Bennett, Esq.
BENNETT & BENNETT
1200 Anastasia Ave., Office 360
Coral Gables, FL 33134
Tel: (305) 444-5925
Email: peterbennettlaw@gmail.com
richardbennett27@gmail.com
LITTLE ROCK, AR: Faces Class Action Over False-Alarm Ordinance
--------------------------------------------------------------
The Associated Press reports that a brick company says a Little
Rock ordinance that establishes fines for false burglar alarms at
homes and businesses is unconstitutionally vague.
ABC Block Co. filed a lawsuit seeking to overturn the 11-year-old
ordinance. It claims the law allows "arbitrary and discriminatory
enforcement."
The Arkansas Democrat-Gazette reported on Nov. 6 that the company
believes it and more than 1,000 businesses and people could
benefit from its class-action lawsuit.
The city says the fees are necessary because they help reduce the
number of false alarms so emergency personnel can concentrate on
genuine problems.
The lawsuit says the fee structure punishes alarm owners -- at
times making them liable for false alarms caused by storms.
Under the ordinance, customers pay a civil penalty when four false
alarms occur in a calendar year. [GN]
LOUISIANA: Class Action Against OFI in Stanford Case Can Proceed
----------------------------------------------------------------
Joe Gyan Jr., writing for The Advocate, reports that allegations
that Louisiana financial regulators' failure to perform their
duties contributed to the massive losses suffered by hundreds of
Louisiana investors in the Stanford Trust Co. debacle can move
forward as a class action, a state appeals court in Baton Rouge
has ruled.
Phil Preis, the lead attorney for those residents, said on Nov. 6
the damages sustained by those investors are some $400 million,
which includes interest.
Roughly seven dozen mostly south Louisiana residents sued the
state Office of Financial Institutions in 2009, essentially
claiming OFI turned a blind eye to Stanford owner Robert Allen
Stanford's multibillion-dollar fraud scheme.
OFI has stated in court documents that it doesn't guarantee that
investors in OFI-regulated companies, such as Stanford Trust,
won't lose money to fraudulent conduct.
The lawsuit also alleges Pennsylvania-based SEI Investments Co.
performed the accounting and reporting of the IRA investments and
"actively and materially aided" Stanford Trust and Stanford Group
Co. to "perpetuate the massive Ponzi scheme now alleged by the
SEC." SEI denies those allegations.
Stanford's firm operated Stanford Group Co. in Baton Rouge.
In 2012, state District Judge Mike Caldwell, of Baton Rouge,
certified the suit against OFI and SEI as a class action on behalf
of some 1,100 Louisiana residents.
Mr. Preis said on Nov. 6 the claims against SEI were later removed
to federal court and are currently being handled in Dallas. If
the case against SEI goes to trial, he added, the trial would be
held in federal district court in Baton Rouge.
Mr. Preis said the negligence claims against OFI remain in state
court in Baton Rouge.
The best chance for the Louisiana residents to obtain a major
financial recovery is in the federal case against SEI, he added.
"We would like to resolve it with the state of Louisiana,"
Mr. Preis said of the claims against OFI. "We don't view them as
the primary culprit. They're not our primary focus."
The state Attorney General's Office represents OFI in the case.
Ruth Wisher, a spokeswoman for that office, said on Nov. 6 the
office does not comment on pending litigation.
If a settlement isn't reached with SEI, Mr. Preis said, the
federal court trial could possibly begin in early 2019.
The state 1st Circuit Court of Appeal affirmed Caldwell's decision
to certify the claims against OFI by the 86 named plaintiffs as a
class action on behalf of the larger group of some 1,100
residents.
The class consists of persons who purchased Stanford International
Bank CDs, or certificates of deposit, in Louisiana between Jan. 1,
2007, and Feb. 13, 2009, as well as persons who renewed any SIB CD
in the state between those dates. The class also includes persons
for whom Stanford Trust purchased SIB CDs in Louisiana during that
time frame.
"Although the evidence shows that there were differences in the
manner in which the various plaintiffs came to invest in the SIB
CDs, we fail to see how these differences change the fact common
to all the plaintiffs -- that they invested in the CDs under a
false understanding of the value and safety of the investment,"
Circuit Judge John Michael Guidry wrote on Nov. 1 for a three-
judge panel of the 1st Circuit in affirming Caldwell's class-
action certification.
"And while the OFI did not directly make any representations to
the plaintiffs as to the value or risk of the SIB CDs, the
question that remains and that is yet to be determined is whether
any communication by the OFI of its concerns regarding the risk
and value of the CDs . . . would have come to the knowledge of the
plaintiffs or otherwise impacted the representations made to the
plaintiffs," he added for the panel, which included Chief 1st
Circuit Judge Vanessa G. Whipple and Circuit Judge Page McClendon.
Judge Guidry said the answer to the question of whether OFI had a
duty to disclose the riskiness of the CDs or to prohibit the sale
of the CDs is "equally common to all the proposed plaintiffs."
OFI had argued to the appellate court that there is a lack of
commonality as to the representations made to each plaintiff to
cause him or her to either invest directly in the SIB CDs held by
Stanford Trust or to place their IRA accounts with Stanford Trust,
whereby the IRA funds were converted to SIB CDs.
Robert Allen Stanford, of Houston, is serving a 110-year prison
term for masterminding a fraud scheme that bilked some 25,000
investors and caused $7 billion in client losses globally. A
federal appeals court in New Orleans let his 2012 conviction and
sentence stand in 2015.
Investors were told by Stanford's financial advisers that their
money was safely held in CDs at Stanford International Bank in the
Caribbean island of Antigua. But the money for the CDs funded his
lavish habits. [GN]
LYFT CAPITAL: Martin Files Suit Over TCPA Breach
------------------------------------------------
Addison N. Martin, individually and on behalf of all others
similarly situated, Plaintiff, v. Lyft Capital, Inc., Defendant,
Case No. 17-cv-24042, (S.D. Fla., November 2, 2017), seeks
damages, injunctive relief, and any other available legal or
equitable remedies, resulting from the illegal actions of
Defendant in negligently and/or intentionally contacting Plaintiff
on Plaintiff's cellular telephone, in violation of the Telephone
Consumer Protection Act, thereby invading Plaintiff's privacy.
Defendant called Martin using an automatic telephone dialing
system.
Lyft Capital -- https://lyftcapital.com/ -- is a small business
financial solutions company located in 6303 Blue Lagoon Dr.,
Miami, FL.
Plaintiff is represented by:
Sean Estes, Esq.
JAMES HOYER, P.A.
2801 West Busch Blvd., Suite 200
Tampa, FL 33618
Telephone: (813) 375-3700
Facsimile: (813) 375-3710
Email: sestes@jameshoyer.com
- and -
Earl P. Underwood, Jr., Esq.
Kenneth J. Riemer, Esq.
UNDERWOOD & RIEMER, P.C.
21 South Section Street
Fairhope, AL 36532
Telephone: (251) 990-5558
Facsimile: (251) 990-0626
Email: epunderwood@alalaw.com
kjr@alaconsumerlaw.com
MARS PETCARE: 6th Cir. Remands "Roberts" Pet Food Pricing Suit
--------------------------------------------------------------
The United States Court of Appeals, Sixth Circuit, issued an
Opinion reversing the judgment of the District Court denying
Plaintiff's Motion to Remand the case captioned RANDY ROBERTS,
Plaintiff-Appellant, v. MARS PETCARE US, INC., Defendant-Appellee,
No. 17-6122 (6th Cir.).
Mars removed the case to the Eastern District of Tennessee,
invoking the court's diversity jurisdiction under the Class Action
Fairness Act (CAFA). Roberts filed a motion to remand, which the
district court denied.
Roberts filed this class action against Mars in a Tennessee state
court. He alleged that Mars conspired with other pet food
manufacturers, veterinarian chains, and a retailer to employ a
prescription-authorization requirement to sell pet food at above
market prices in violation of the Tennessee Trade Practices Act
Mars removed the case to federal court, invoking its Delaware
citizenship and claiming its Tennessee citizenship did not matter.
The Sixth Circuit said it may look beyond a complaint if a
plaintiff fraudulently joins non-diverse defendants in order to
defeat removal. But this possibility requires proof that the
plaintiff has no colorable claim against the non-diverse defendant
under state law. No one can say that Roberts joined Mars to this
lawsuit in order to defeat diversity because he did not join Mars
at all. Roberts named Mars as the original defendant in the
lawsuit, and it remains the only defendant in the lawsuit.
On top of that, Roberts has alleged that Mars conspired with pet
food manufacturers, veterinary clinics, and a retailer to sell
prescription pet food at above-market prices. If true, the
allegations establish a per se violation of the Tennessee Trade
Practices Act. Tenn. Code Ann. Section 47-25-101. That is a
colorable claim against Mars. The Sixth Circuit sees no evidence
of fraud here even if Royal Canin faces similar allegations in a
class action elsewhere.
Nor can the district court exercise its power under Civil Rule 19
to join Royal Canin to the lawsuit in order to create federal
court jurisdiction. On its face, Civil Rule 19 contemplates pre-
existing federal court jurisdiction: It speaks of joinder that
will not deprive the court of subject-matter jurisdiction. More
fundamentally, diversity jurisdiction must exist at the time of
removal.
An act of joinder under Rule 19 would itself be an exercise of
federal court jurisdiction. In the absence of jurisdiction over
the existing lawsuit, a district court has no power to join
another party to the proceeding. Recognizing that fraudulent
joinder would accomplish little, Mars in essence seeks to create a
new fraudulent non-joinder doctrine. But the Sixth Circuit has no
authority to do so.
Because Mars has not demonstrated the minimal diversity required
by Section 1332(d)(2)(A), the Sixth Circuit says it need not
address Roberts' argument that the home-state exception in Section
1332(d)(4)(B) applies to this case.
The Sixth Circuit reverses and remands to the district court for
further proceedings.
A full-text copy of the Sixth Circuit's November 2, 2017 Opinion
is available at http://tinyurl.com/yalxdb97from Leagle.com.
ARGUED: Charles Barrett -- info@nealharwell.com -- NEAL & HARWELL,
PLC, Nashville, Tennessee, for Appellant.
Xiao Wang -- xwang@wc.com -- WILLIAMS & CONNOLLY LLP, Washington,
D.C., for Appellee.
ON BRIEF: Charles Barrett, NEAL & HARWELL, PLC, Nashville,
Tennessee, Gordon Ball -- gball@gordonball.com -- GORDON BALL,
PLLC, Knoxville, Tennessee, for Appellant.
Xiao Wang, WILLIAMS & CONNOLLY LLP, Washington, D.C., R. Dale
Grimes, Russell E. Stair, BASS, BERRY & SIMS PLC, 1700 Riverview
Tower900 S. Gay Street, Knoxville, TN 37902, Nashville, Tennessee,
for Appellee.
MCDONALD'S CORP: "King" Suit Disputes Chicken Breast Meat Claims
----------------------------------------------------------------
King Ho Yip and Anna Hennigan, on behalf of themselves and others
similarly situated Plaintiffs, v. McDonald's Corp. and McDonald's
USA, LLC (d/b/a "McDonald's"), Defendants, Case No. 17-cv-06464
(E.D. N.Y., November 7, 2017), seeks equitable relief, treble
damages, punitive damages, attorney's fees and costs, including
interest and such other and further legal and equitable relief
resulting from breach of implied and express warranty of fitness
and implied warranty of merchantability, negligent
misrepresentation, unjust enrichment, false advertising, pursuant
to the New York General Business Law, in violation of the
Magnuson-Moss Warranty Federal Trade Commission Improvement Act
and Consumer Fraud and Deceptive Trade Practices Acts of the
various states and District of Columbia.
Plaintiffs dispute McDonald's claims that its sandwiches, wraps
and salads include "100% chicken breast fillet." They allege that
it contains chicken rib meat. [BN]
Plaintiff is represented by:
John Troy, Esq.
Troy Law, PLLC
41-25 Kissena Boulevard, Suite 119
Flushing, NY 11355
Tel (718) 762-1324
Email: johntroy@troypllc.com
MEMPHIS, TN: MPD Files Class Action Over Auto Accident Reports
--------------------------------------------------------------
Andy Wise, writing for WMC, reports that Justin Joy is serious.
Soft-spoken. His demeanor's a little unusual, given his
profession.
But what few words the attorney for Memphis Police Department and
City of Memphis had to say before a federal judge on Nov. 6 pretty
much summed up the challenge the department's Central Records
division faces.
"We're stuck between a rock and a hard place," Mr. Joy said.
MPD and the city are stuck between the public's right to access
and the public's right to privacy as it relates to police auto
accident reports, officially titled a "Tennessee Electronic Crash
Report." The WMC Action News 5 Investigators have produced
several investigations -- like this one or this one and this one -
- in which nefarious telemarketers or "runners" culled accident
reports so telemarketers for unethical medical clinics could
solicit car accident victims for questionable medical treatment.
Jimmy Blount, a Collierville, Tennessee attorney, has filed a
class action suit against MPD and Memphis to challenge once and
for all who should have access to public accident reports. His
suit cited the federal Driver's Privacy Protection Act and state
court precedent as prohibiting access to public police crash
reports ". . . for the purposes of solicitation by unauthorized
third parties."
"The problem is unauthorized access for illegitimate purposes,"
Mr. Blount said. "Scam artists who make telemarketing calls to
accident victims and try to sell them to illegal and unethical
attorneys and health care providers. They can only get that
information from one place, and that's the Memphis Police
Department, putting them in a stack in a room for just anyone to
look at."
That room is MPD Central Records Document Review room, right off
the elevators on the seventh floor of 170 N. Main Street. But you
won't find a stack of accident reports there anymore. In partial
response to our stories, MPD changed its policy this summer.
Telemarketers or their "runners" now have to prove they're
Tennessee residents. There's no limit to the number of accident
reports they can review or purchase, but they must request
specific reports -- requiring them to know crash victims' names,
accident locations or dates in order to access the reports.
Still, Kevin Kerr, one of Blount's plaintiffs, was solicited by
several telemarketers barely a day after his Memphis auto accident
Oct. 17, months after MPD started implementing the new access
policy.
"They're constantly calling and didn't give me time to heal or
think about the situation," Mr. Kerr said.
"Everything needs to be considered on a case-by-case basis," said
Nashville, Tennessee attorney Doug Pierce. Mr. Pierce represents
Bradley Jetmore, a Nashville telemarketing business owner who sued
the metropolitan government of Nashville and Davidson County and
its police department over limiting his access to crash reports.
Jetmore won his case, but metro Nashville appealed the decision to
the Tennessee Court of Appeals in Nashville. On
Oct. 12, the appellate court affirmed the trial court's decision,
essentially upholding that the metro government could not limit
access to public accident reports either by number or by
commercial purpose.
"Any system can be abused by anyone who has legitimate access to
records. That doesn't mean it is being abused," said Mr. Pierce.
Neither Mr. Pierce, Mr. Blount nor Mr. Joy were aware that MPD had
changed its access policy. U.S. District Court Judge John T.
Fowlkes, Jr., advised them to craft a compromise that would comply
with both the law and the public's interest. He set a deadline of
Nov. 20 for them to submit that plan before he considers granting
Mr. Blount's request for a restraining order on the release of the
reports. [GN]
MICHAELSON REAL: "Hayes" Labor Suit Seeks Unpaid Overtime
---------------------------------------------------------
Antoni M. Hayes, on behalf of himself and others similarly
situated, Plaintiff, v. Michaelson Real Estate Group, LLC and
Michael Moses, Defendants, Case No. 17-cv-02667, (M.D. Fla.,
November 6, 2017), seeks to recover unpaid overtime compensation,
liquidated damages, reasonable attorneys' fees and costs,
injunctive and all such other relief under the Fair Labor
Standards Act.
Michaelson manages and operates multifamily housing developments
throughout the State of Florida with Moses as President and Chief
Executive Officer. Hayes was employed by the Defendants as a
maintenance employee. [BN]
Plaintiff is represented by:
Jay P. Lechner, Esq.
Jason M. Melton, Esq.
WHITTEL & MELTON, LLC
One Progress Plaza
200 Central Avenue, #400
St. Petersburg, FL 33701
Telephone: (727) 822-1111
Facsimile: (727) 898-2001
Email: Pleadings@theFLlawfirm.com
lechnerj@theFLlawfirm.com
sonia@theFLlawfirm.com
MILLENNIUM MOTORS: Xin Seeks Minimum, Overtime Pay, Commissions
---------------------------------------------------------------
Xin Hao Liu (a/k/a Eric Liu), Run De Mo (a/k/a "Alfred Mo") and
Menghan Qin (a/k/a "Hanna Qin"), individually and on behalf of all
other employees similarly situated, Plaintiff, v. Millennium
Motors Sports, LLC, Xiao Meng Li (a/k/a "Jason Li") and John Does
# 1-10, Defendants, Case No. 17-cv-06438, (E.D. N.Y., November 6,
2017), seeks unpaid minimum and overtime wages, liquidated
damages, declaratory relief, unpaid commissions, damages for
failure to promptly pay wages, damages for breach of contract and
conversion, compensation for failure to provide wage notice at the
time of hiring and failure to provide paystubs, costs, interest
and attorneys' fees pursuant to the Fair Labor Standards Act and
New York Labor Law.
Millennium Motors Sports owns and operates an auto dealership
located at 202-10 Northern Boulevard, Bayside, NY 11361 where
Plaintiffs were employed as salespersons. [BN]
Plaintiff is represented by:
William M. Brown, Esq.
HANG & ASSOCIATES, PLLC.
136-18 39th Ave., Suite 1003
Flushing, NY 11354
Tel: (718) 353-8588
Email: wbrown@hanglaw.com
MISSOURI: Judge Has Yet to Rule on Juvenile Parole Class Action
---------------------------------------------------------------
Summer Ballentine, writing for The Associated Press, reports that
a federal judge has ruled a group of Missouri prisoners convicted
of murder as juveniles and sentenced to life behind bars without
an opportunity for parole can move forward with a lawsuit against
the state's prison system.
The Roderick and Solange MacArthur Justice Center in St. Louis,
which filed the suit on behalf of the plaintiffs, on Nov. 6
announced the ruling by U.S. District Judge Nanette Laughrey.
Attorneys for the four named plaintiffs argued in court documents
that they're not getting a meaningful chance at parole, despite
recent court rulings and a new Missouri law requiring that.
Attorney General Josh Hawley's office, representing the Department
of Corrections, had tried to get the judge to throw out the
lawsuit. Mr. Hawley's Deputy Chief of Staff Loree Anne Paradise
declined comment, citing the pending case.
The U.S. Supreme Court in 2012 ruled mandatory life sentences
without parole are unconstitutional for juveniles, which the
MacArthur Justice Center says applies to about 80 people in
Missouri prisons. State lawmakers in 2016 passed a law that
allows juveniles who had previously received those mandatory
sentences to get an opportunity for release after 25 years in
prison.
But attorneys for the plaintiffs alleged that of 20 hearings for
prisoners newly eligible for release under that law, the Missouri
Board of Probation and Parole has granted parole for only two,
according to a June court filing.
"This decision reminds the State that they can't simply slap
parole eligibility on a young inmate's prison term and expect to
have satisfied their constitutional duties," MacArthur Justice
Center attorney Amy Breihan said in a statement. "Children are
different. The Supreme Court has said that repeatedly, and here
the Court expressly recognized that axiom applies not just at
sentencing, but to parole proceedings as well."
Plaintiffs claim that parole board members are mostly focused on
the original offense that prisoners were convicted of. In court
filings their attorneys asked Judge Laughrey to require the board
to offer those prisoners a chance at release based on
"demonstrated maturity and rehabilitation."
Lawyers for the prisoners also are asking the judge to rule that
the current parole process for people convicted as juveniles and
sentenced to life without parole is unconstitutional. They want
the case to be a class-action suit, but the judge hasn't yet ruled
on that.
Judge Laughrey also ordered the Department of Corrections to
provide records of parole proceedings to the plaintiffs, which
previously had been denied. [GN]
NATIONWIDE MUTUAL: Court Refuses to Remand "Allen" Suit
-------------------------------------------------------
The United States District Court for the Southern District of
Ohio, Eastern Division, issued a Finding and Recommendation
denying Plaintiff's Motion to Remand the case captioned JOHN DALE
ALLEN Plaintiff, v. NATIONWIDE MUTUAL INSURANCE, et al.,
Defendants, Civil Action No. 2:17-cv-561 (S.D. Ohio).
Plaintiff, a citizen of Ohio, filed a purported nationwide class
action against Defendants. In his 2016 Complaint, Plaintiff
claimed that Defendants violated the Stored Communication Act when
Defendant Nationwide allegedly issued a bad check that was
subsequently refused by Defendant JP Morgan Chase.
Defendants removed this matter to federal court pursuant to the
provisions of the Class Action Fairness Act of 2005 (CAFA).
Generally, a civil case brought in a state court may be removed by
a defendant to federal court if it could have been brought there
originally. Under the Class Action Fairness Act, a district court
has original jurisdiction over an action where (1) the amount in
controversy exceeds $5 million, (2) any plaintiff is a citizen of
a state different from any defendant, and (3) the proposed
plaintiff class (or classes) contain(s) at least 100 members in
the aggregate.
The parties do not dispute that CAFA's jurisdictional
prerequisites are satisfied by Plaintiff's original Complaint and
that removal to federal court, therefore, was proper. They
disagree, however, on the effect of Plaintiff's purported First
Amended Complaint. Plaintiff's argument that his June 30, 2017,
filing in state court divests this Court of jurisdiction under
CAFA is misguided. Simply put, Plaintiff filed in the wrong court.
Defendants properly removed this matter to federal court on June
27, 2017.
A properly filed notice of removal in the state court immediately
strips the state court of its jurisdiction. From the moment of
removal, then, a filing in state court is a nullity. Plaintiff's
June 30, 2017, filing in state court came three days too late to
effectively amend his Complaint.
For that reason alone, it would be proper to deny Plaintiff's
Motion for Remand.
A full-text copy of the District Court's November 2, 2017 Report
and Recommendation is available at http://tinyurl.com/y7r2d7sj
from Leagle.com.
John Dale Allen, Plaintiff, Pro Se.
Nationwide Mutual Insurance Company, Defendant, represented by
Albert Grant Lin -- albert.lin@icemiller.com -- Ice Miller &
Kristina S. Dahmann -- kristina.dahmann@icemiller.com
JPMorgan Chase & Co., Defendant, represented by Michael N. Ungar -
- mungar@ulmer.com -- Ulmer and Berne LLP, Alexander M. Andrews --
aandrews@ulmer.com -- Ulmer & Berne LLP & David D. Yeagley --
dyeagley@ulmer.com -- Ulmer & Berne LLP.
NAVIENT CORP: "Gross" Suit Hits Share Price Drop
------------------------------------------------
Melvin Gross, Individually and on behalf of all others similarly
situated, Plaintiff, v. Navient Corporation, John F. Remondi,
Somsak Chivavibul and Christian M. Lown, Case No. 17-cv-11014 (D.
N.J., November 3, 2017), seeks to recover compensable damages
caused by Defendants' violations of the federal securities laws
and to pursue remedies under Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934.
Navient provides asset management and business processing services
to education, health care, and government clients at the federal,
state, and local levels in the United States.
Navient's 2017 Q2 10-Q report failed to disclose that the Company
engaged in the facilitation of subprime loans, steering student
borrowers into payment plans that postponed bills, allowing
interest to accumulate rather than helping them enroll in income-
driven repayment plans. On October 5, 2017, Pennsylvania Attorney
General Josh Shapiro filed a lawsuit in Pennsylvania against
Navient and one of its subsidiaries. On this news, shares of the
Company fell $2.10 per share or over 14% from its previous closing
price to close at $12.60 per share on October 5, 2017.
Plaintiff purchased Navient securities at artificially inflated
prices and lost substantially upon the revelation of the alleged
corrective disclosure. [BN]
Plaintiff is represented by:
Bruce D. Greenberg, Esq.
LITE DEPALMA GREENBERG, LLC
570 Broad Street, Suite 1201
Newark, NJ 07102
Telephone: (973) 623-3000
Facsimile: (973) 623-0858
Email: bgreenberg@litedepalma.com
- and -
Jeremy A. Lieberman, Esq.
J. Alexander Hood II, Esq.
Hui M. Chang, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: (212) 661-1100
Facsimile: (212) 661-8665
Email: jalieberman@pomlaw.com
ahood@pomlaw.com
hchang@pomlaw.com
- and -
Patrick V. Dahlstrom, Esq.
POMERANTZ LLP
10 South La Salle Street, Suite 3505
Chicago, IL 60603
Telephone: (312) 377-1181
Facsimile: (312) 377-1184
Email: pdahlstrom@pomlaw.com
NFL: Rucker's Concussion Payout to Go to Restitution
----------------------------------------------------
The Associated Press reports that if former Cleveland Browns wide
receiver Reggie Rucker gets money from a potential settlement
between the NFL and athletes who suffered concussions, he'll have
to use it to pay restitution for stealing from his nonviolence
nonprofit groups.
Mr. Rucker's attorney previously said the 70-year-old intends to
pay restitution using whatever payment he might get from a class-
action settlement in the concussions matter. Cleveland.com
reports a federal judge recently made that an order.
Mr. Rucker was sentenced last year to 21 months in prison and
ordered to pay $110,000 for using the charities' money to pay
gambling debts and personal expenses. Part of his NFL pension
payments also are being garnished for restitution.
His attorney blamed Rucker's actions on a gambling addiction
caused by football-related brain injuries. Prosecutors scoffed at
that argument. [GN]
NIMBLE STORAGE: Court Grants Stipulation to Dismiss Suit
--------------------------------------------------------
The United States District Court for the Northern District of
California issued an Order dismissing with prejudice the
Consolidated Derivative Action styled IN RE NIMBLE STORAGE, INC.
DERIVATIVE LITIGATION. This Document Relates To: ALL ACTION. Lead
Case No. 5:16-CV-00892 (N.D. Cal.) pursuant to a stipulation
between the Plaintiffs and the Defendants.
A full-text copy of the District Court's November 2, 2017 Opinion
is available at http://tinyurl.com/y7cqzsdvfrom Leagle.com.
Sheldon Schwartz, Plaintiff, represented by Adam Todd Hoover --
adhoover@reichradcliffe.com -- Reich Radcliffe and Hoover LLP.
Sheldon Schwartz, Plaintiff, represented by Joshua M. Lifshitz --
jml@jlclasslaw.com -- Lifshitz & Miller & Marc Gene Reich --
mgr@reichradcliffe.com -- Reich Radcliffe and Kuttler LLP.
Suresh Vasudevan, Defendant, represented by Deborah Kang --
dkang@fenwick.com -- Fenwick and West LLP, Felix Shih-Young Lee --
flee@fenwick.com -- Fenwick & West LLP, Michael M. Davis-Wilson --
mdavidwilson@fenwick.com -- Fenwick & West LLP, Michael Scott
Dicke -- mdicke@fenwick -- Fenwick and West LLP & Susan Samuels
Muck -- smuck@fenwick.com -- Fenwick & West LLP.
Varun Mehta, Defendant, represented by Deborah Kang, Fenwick and
West LLP, Felix Shih-Young Lee, Fenwick & West LLP, Michael M.
Davis-Wilson, Fenwick & West LLP, Michael Scott Dicke, Fenwick and
West LLP & Susan Samuels Muck, Fenwick & West LLP.
Frank Calderoni, Defendant, represented by Deborah Kang, Fenwick
and West LLP, Felix Shih-Young Lee, Fenwick & West LLP, Michael M.
Davis-Wilson, Fenwick & West LLP, Michael Scott Dicke, Fenwick and
West LLP & Susan Samuels Muck, Fenwick & West LLP.
James J. Goetz, Defendant, represented by Deborah Kang, Fenwick
and West LLP, Felix Shih-Young Lee, Fenwick & West LLP, Michael M.
Davis-Wilson, Fenwick & West LLP, Michael Scott Dicke, Fenwick and
West LLP & Susan Samuels Muck, Fenwick & West LLP.
Jerry M. Kennelly, Defendant, represented by Deborah Kang, Fenwick
and West LLP, Felix Shih-Young Lee, Fenwick & West LLP, Michael M.
Davis-Wilson, Fenwick & West LLP, Michael Scott Dicke, Fenwick and
West LLP & Susan Samuels Muck, Fenwick & West LLP.
Ping Li, Defendant, represented by Deborah Kang, Fenwick and West
LLP, Felix Shih-Young Lee, Fenwick & West LLP, Michael M. Davis-
Wilson, Fenwick & West LLP, Michael Scott Dicke, Fenwick and West
LLP & Susan Samuels Muck, Fenwick & West LLP.
William J. Schroeder, Defendant, represented by Deborah Kang,
Fenwick and West LLP, Felix Shih-Young Lee, Fenwick & West LLP,
Michael M. Davis-Wilson, Fenwick & West LLP, Michael Scott Dicke,
Fenwick and West LLP & Susan Samuels Muck, Fenwick & West LLP.
Anup V. Singh, Defendant, represented by Deborah Kang, Fenwick and
West LLP, Felix Shih-Young Lee, Fenwick & West LLP, Michael M.
Davis-Wilson, Fenwick & West LLP, Michael Scott Dicke, Fenwick and
West LLP & Susan Samuels Muck, Fenwick & West LLP.
Umesh Maheshwari, Defendant, represented by Deborah Kang, Fenwick
and West LLP, Felix Shih-Young Lee, Fenwick & West LLP, Michael M.
Davis-Wilson, Fenwick & West LLP, Michael Scott Dicke, Fenwick and
West LLP & Susan Samuels Muck, Fenwick & West LLP.
NORTHROP GRUMMAN: Judge Certifies 401(k) Plan Fees Class Action
---------------------------------------------------------------
Rebecca Moore, writing for PlanAdviser, reports that a federal
judge has certified class action status for a lawsuit alleging
that Northrop Grumman engaged in self-dealing and failed to secure
reasonable service fees for its 401(k) plan.
According to the original complaint, the defendants "acted to
benefit themselves and Northrop by paying plan assets to Northrop
purportedly for administrative services Northrop provided to the
plan, which were not necessary for administration of the plan or
worth the amounts paid. Defendants also caused the plan to pay
unreasonable recordkeeping fees to the plan's recordkeeper and
mismanaged the plan's emerging markets equity fund."
The plaintiffs also accuse the plan and its administrative and
investment committees of allowing its recordkeeper to receive fees
from an agreement with Financial Engines to provide participants
with investment advice. Other lawsuits have challenged fees paid
to recordkeepers from arrangements with Financial Engines.
However, unlike the Northrop Grumman complaint, these lawsuits
were filed against the recordkeepers and not the plan sponsors.
In two cases -- a lawsuit against Xerox HR Solutions and a lawsuit
against Voya Financial -- a federal judge dismissed the claims,
saying the plan sponsor was the fiduciary responsible for
negotiating fees for plan providers.
In certifying the class, U.S. District Court Judge Andre Birotte
Jr. of the U.S. District Court for the Central District of
California found the plaintiffs have adequately established
Article III standing through evidence that shows named plaintiffs
were participants in the emerging markets fund and the Financial
Engines account. In addition, the plaintiffs have proffered
evidence that since September 9, 2010, there have been at least
100,000 active participants in the plan, and the defendants do not
appear to dispute that the plaintiffs have satisfied the
numerosity requirement for class certification.
As to the commonality requirement, the defendants assert that it
is impossible to determine whether this claim is common among all
members of the class because the plaintiffs do not allege the
"tipping point" at which the fees paid for recordkeeping became
unreasonable. However, seeing as recovery is sought for losses to
the plan, the question of when the fees became unreasonable is a
common question, Judge Birotte decided. "There will be only one
answer because the relevant consideration is the effect of
defendants' conduct on the plan as a whole," he wrote in his
order.
The defendants also suggest that commonality cannot be established
because various defendants served as fiduciaries under the plan at
different times, and the class members were not all participants
in the plan at the same time or for the same duration. However,
Judge Birotte again found that differences in participation by the
class members does not defeat the fact that the question of
whether the defendants breached their fiduciary duties to the plan
is common to all plan participants' claims and will generate
answers common to all of the putative class members.
As for the typicality requirement for class certification, Judge
Birotte said, "Given that the focus in ERISA fiduciary breach
cases is on the defendants' conduct, and that the first amended
complaint specifically alleges plan-wide fiduciary breaches and
prohibited transactions, the court finds the typicality
requirement satisfied."
The order notes that "the party seeking certification bears the
burden of showing that . . . at least one requirement of Rule
23(b) ha[s] been met." Given that the plaintiffs assert Employee
Retirement Income Security Act (ERISA) Section 502(a)(2) and (3)
claims on behalf of the plan and allege breaches of fiduciary duty
by the defendants that will, if proved, affect every plan
participant, Judge Birotte concluded that "prosecuting separate
actions by or against individual class members would create a risk
of . . . adjudications with respect to individual class members
that . . . would be dispositive of the interests of the other
members not parties to the individual adjudications or would
substantially impair or impede their ability to protect their
interests."
While he found class certification proper, Judge Birotte modified
the class. "Because the future participants will receive the
benefit of any injunctive relief awarded, the court excludes
future participants from the class," he wrote. [GN]
PHOENIX WAREHOUSE: Settles Class Action Over Unpaid OT Wages
------------------------------------------------------------
Anne Wallace, writing for LawyersandSettlements.com, reports that
plaintiffs, including approximately 1,500 workers at Phoenix
Warehouse of California between 2009 and 2016, allege that they
were expected to work eight to 12 hours a day, without meal or
rest breaks and without overtime pay. The lawsuit describes a
rancid environment in which workers, mostly Latinos who could only
speak Spanish, were threatened with deportation if they
complained. One worker has also reported that she had to accede
to the sexual advances of her manager in order to get paid for the
day.
The allegations paint a grim picture. As described, these actions
are gross and overt forms of wage theft and workplace violence
perpetrated against vulnerable men and women, sweatshops in the
truest sense of the word. The lawsuit seeks millions of dollars
in restitution, interest, penalties and legal fees on behalf of
the plaintiffs.
Phoenix Warehouse is a retail distribution center that delivers
goods to Walmart, Target, HomeGoods and other retailers in
Southern California. The workers in question were technically not
employees of Phoenix Warehouse, but three staffing companies:
Fairway Staffing Services of Bellflower, Coastal Employment of
Pico Rivera and Diamond Staffing Services. Phoenix Warehouse and
each of the staffing companies allegedly evaded overtime pay
obligations by shuffling employees among the staffing agencies
each week, so that the overtime pay threshold was never crossed.
It was a shell game.
The use of staffing companies is common in the warehouse
distribution industry and has been implicated in other wage theft
cases. But California labor law provides a way to hold contractors
liable for overtime pay violations of subcontractors.
The shifting of employees among contractors may add a new wrinkle
here, especially if the facts show that none of the staffing
companies was actually ever in violation of California overtime
law. But if Phoenix Warehouse, alone, determined who the employee
worked for from day-to-day or hour- to- hour, Phoenix may be
responsible for legal wage payment.
The complaint also alleges that workers' time cards were altered
at Phoenix's New Jersey headquarters to ensure that clocked hours
never triggered an overtime obligation. The falsification of time
records and destruction of evidence would certainly raise other
legal issues.
Although some of the activities described in the lawsuit go back
many years, the class action, itself, is still young. This may be
one to watch for some time yet. [GN]
PIZZA HUT LLC: Ion Sues for Violation of Antitrust Laws
-------------------------------------------------------
Kristen Ion, on behalf of herself and all others similarly
situated, Plaintiff, v. Pizza Hut, LLC, a Delaware limited
liability company, Defendant, Case No. 17-cv-24042, (E.D. Tex.,
November 3, 2017), seeks to pursue remedies under Section 1 of the
Sherman Act.
Ion challenges the no-solicitation and no-hiring agreement between
and among Pizza Hut, LLC and its franchisees, pursuant to which
the franchisees agreed not to recruit or hire each other's
management employees or Pizza Hut management employees, thereby
alleging restraint of competition and a per se violation of the
antitrust laws. [BN]
Plaintiff is represented by:
L. Kirstine Rogers, Esq.
Bruce W. Steckler, Esq.
STECKLER GRESHAM COCHRAN
12720 Hillcrest Road - Suite 1045
Dallas, TX 75230
Telephone: (972) 387-4040
Facsimile: (972) 387-4041
Email: krogers@stecklerlaw.com
bruce@stecklerlaw.com
- and -
Derek Y. Brandt, Esq.
BRANDT LAW LLC
P.O. Box 487
Edwardsville, IL 62025
Tel: (618) 307-6116
Fax: (618) 307-6161
Email: derek@brandtlawllc.com
- and -
Richard D. McCune, Esq.
Michele M. Vercoski, Esq.
McCUNE WRIGHT AREVALO LLP
3281 East Guasti Road, Suite 100
Ontario, CA 91761
Telephone: (909) 557-1250
Facsimile: (909) 557-1275
Email: rdm@mccunewright.com
mmv@mccunewright.com
- and -
Joseph G. Sauder, Esq.
MCCUNEWRIGHT, LLP
1055 Westlakes Drive, Suite 300
Berwyn, PA 19312
Telephone: (610) 200-0580
Email: jgs@mccunewright.com
PROMOLOGICS INC: Court Narrows Claims in Unsolicited Ads Suit
-------------------------------------------------------------
The United States District Court for the Northern District of
Illinois, Eastern Division, issued a Memorandum Opinion and Order
granting in part and denying in part Defendant's Motion to Dismiss
the case captioned AMERICA'S HEALTH & RESOURCE CENTER, LTD. and
AFFILIATED HEALTH GROUP, LTD., Individually and as the
Representatives of a Class of Similarly Situated Persons,
Plaintiffs, v. PROMOLOGICS, INC. d/b/a HEALTH-SCRIPTS, JANSSEN
PHARMS., INC., and JOHN DOES 1-12, Defendants, Case No. 16 C 9281
(N.D. Ill.).
Plaintiffs America's Health & Resource Center (AHRC) and
Affiliated Health Group, Ltd. (Affiliated) filed this putative
class action lawsuit under the Telephone Consumer Protection Act
(TCPA) and Illinois conversion law. Plaintiffs allege that
Defendants Health-Scripts and Janssen sent them a three-page fax
lacking TCPA-required opt out notices. Affiliated claims that it
received the fax on its machine, whereas AHRC maintains that the
fax was printed on its paper and toner and wasted the time of its
employees.
Defendants Promologics, Inc. d/b/a Health-Scripts (Health-Scripts)
and Janssen Pharmaceuticals, Inc. (Janssen) filed Motions to
Dismiss.
When considering motions to dismiss under Rules 12(b)(1) and
12(b)(6), a district court accepts as true all well-pleaded
factual allegations and draws reasonable inferences from the
allegations in favor of the non-moving party.
The Court points out that Plaintiffs sufficiently allege receipt
of the May 29, 2016 fax by averring that AHRC owned the paper and
toner used to print the fax and that Affiliated owned the
telephone line, fax number, and fax machine. It is immaterial that
AHRC apparently did not own the fax machine.
While true that Plaintiffs collectively may enjoy only one
recovery for the single TCPA violation they allege, Defendants
furnish no authority for their argument that a single transmission
of a junk fax can only ever implicate one plaintiff. By pleading
the date on which they received the fax, attaching the fax itself
to their Complaint, alleging from whom they received the fax, and
including Health-Source's RSVP form on which its fax number is
listed, Plaintiffs give Defendants fair notice of their TCPA
claim.
Because Defendants cite no authority imposing a comparable
requirement under the different provisions governing junk faxes,
the Court is unconvinced that they lack sufficient notice of the
claim purely on account of Plaintiffs' failure to include
Affiliated's fax number.
Defendants argue that the TCPA count should fail because the fax
at issue does not fit the statutory definition of an unsolicited
advertisement.
The TCPA defines unsolicited advertisement as any material
advertising the commercial availability or quantity of any
property, goods, or services which is transmitted to any person
without that person's prior express invitation or permission, in
writing or otherwise.
Plaintiffs plausibly allege that the fax was a pretext to an
advertisement. Plaintiffs assert that Health-Scripts (by selling
registrant data) and Janssen (by drumming up interest in its
pharmaceuticals and inducing medical professionals to prescribe
them) utilized the free seminar to further their commercial
efforts. Promoting a free seminar touching on medical topics
related to Janssen's drugs, directing registrants to consent to
Health-Scripts's sharing personal information, and engendering
allegations of pretext all are features of Defendants' fax that
make it more akin to the unsolicited advertisement.
Accordingly, Plaintiffs have plausibly alleged that the fax was an
"unsolicited advertisement under the TCPA.
Health-Scripts challenges Plaintiffs' standing to bring this
action in light of Spokeo, which established that a bare
procedural violation of a statute flunks Article III's injury-in-
fact requirement. Spokeo, 136 S.Ct. at 1549-50. Citing out-of-
circuit cases such as ARcare v. Qiagen North Am. Holdings, Inc.,
No. 16 C 7638, 2017 WL 449173 (C.D. Cal. Jan. 19, 2017), Health-
Scripts contends that the alleged TCPA opt-out notice violation is
not traceable to the injuries Plaintiffs complain of: lost paper
and toner, interference with Affiliated's use of its fax machine
and phone line, and wasted employee time. According to Health-
Scripts, Plaintiffs would have suffered these same injuries even
had the fax included the TCPA-required opt-out notices. As an
initial matter, the Ninth Circuit appears to have overruled
ARcare. See Van Patten v. Vertical Fitness Group, LLC, 847 F.3d
1037, 1043 (9th Cir. 2017), holding that plaintiff's receipt of
unsolicited text messages was sufficient harm to confer standing,
because unsolicited telemarketing phone calls or text messages, by
their nature, invade the privacy and disturb the solitude of their
recipients such that a plaintiff alleging a violation under the
TCPA need not allege any additional harm beyond the one Congress
has identified. In any event, post-Spokeo courts in this Circuit
have repeatedly held that mere receipt of a fax alleged to lack
TCPA opt-out notices constitutes sufficient harm for purposes of
Article III standing.
Defendants urge the Court to dismiss Plaintiffs' claim for
conversion on the basis that the alleged damages from receipt of
the single three-page fax are de minimis. The Court agrees, as
dismissing such claims under the de minimis maxim has been the
trend in authority in this circuit. The most Plaintiffs can hope
to gain from a favorable judgment on Count II is a few pennies a
fact equally true at all relevant times and unaltered by the class
action device.
Count II for conversion is dismissed for failure to state a claim.
The Court grants in part and denies in part Defendants' Motions to
Dismiss. Count II is hereby dismissed for failure to state a
claim.
A full-text copy of the District Court's November 2, 2017
Memorandum Opinion and Order is available at
http://tinyurl.com/y9v95lsxfrom Leagle.com.
America's Health & Resource Center, Ltd., Plaintiff, represented
by Phillip A. Bock -- phil@classlawyers.com -- Bock Law Firm, LLC
dba Bock, Hatch, Lewis & Oppenheim, LLC.
America's Health & Resource Center, Ltd., Plaintiff, represented
by Julia Lynn Titolo, Bock, Hatch, Lewis & Oppenheim, LLC,
Kimberly M. Watt -- kimberly@classlawyers.com -- Bock & Hatch Llc
& Tod Allen Lewis -- tod@classlawyers.com -- Bock Law Firm, LLC
dba Bock, Hatch, Lewis & Oppenheim, LLC, 134 North La Salle
StreetSuite 1000Chicago, IL 60602-1233.
Affiliated Health Group, Ltd., Plaintiff, Pro Se.
Promologics, Inc., Defendant, represented by Avanti Bakane --
abakane@grsm.com -- Gordon Rees Scully Mansukhani LLP & Christina
Rose Spiezia -- cspiezia@gmail.com -- Gordon Rees Scully
Mansukhani, LLP.
Janssen Pharmaceuticals, Inc., Defendant, represented by Bradley
Joseph Andreozzi -- bradley.andreozzi@dbr.com -- Drinker Biddle &
Reath LLP, Iman N. Boundaoui -- Iman.Boundaoui@dbr.com -- Drinker
Biddle And Reath Llp & Marsha J. Indych -- marsha.indych@dbr.com-
Drinker Biddle & Reath LLP, pro hac vice.
PUERTO RICO ELECTRIC: Fights Class Action Over Alleged Fraud
------------------------------------------------------------
Ryan Boysen, Vince Sullivan and Cara Salvatore, writing for
Law360, report that PREPA, Puerto Rico's electric utility, is
fighting back against a proposed class action alleging it has been
cheating on environmental standards testing and systematically
overcharging customers for years, telling a Puerto Rico federal
court on Nov. 3 certification should be denied because the
putative class members can't show how the alleged conspiracy
affected them as a whole.
The suit has already survived a motion to dismiss, and the fraud
in question has been the subject of lengthy investigations
elsewhere, most notably by the commonwealth's Senate. The
customers say they've been routinely overcharged on their
electricity bills due to an alleged scheme in which PREPA pays
fraudulently inflated prices for cheap, dirty fuel and then passes
those costs on to its customers.
In an objection to the customers' motion for certification filed
on Nov. 3, however, PREPA said the proposed class hasn't put
forward a model that shows how PREPA's alleged fraud damaged the
class as a whole. Since the complaint centers on shipments of
dirty fuel the utility allegedly overpaid for and then bribed
testing labs to conceal the quality of, PREPA said the proposed
class would have to tie each shipment to what the customers
overpaid for it.
That can't be done without conducting a "trial within a trial" for
each of the proposed class' roughly 1.4 million members, a
situation PREPA said is "fatal to [the] case."
"To string together a prima facie case for each individual member
of the class, plaintiffs must connect a fuel surcharge paid by the
class member; to a particular fuel shipment; to evidence that the
particular shipment's composition was not compliant with PREPA's
specifications; to proof that PREPA paid the full contract price
for the shipment; to proof that the delivery was not compliant
because PREPA had entered into an unlawful conspiracy with the
fuel supplier responsible for delivering the shipment; and proof
that PREPA and the fuel supplier conspired with a testing
laboratory to report compliant fuel oil was delivered," PREPA said
in the Nov. 3 objection.
"Not a single link in that evidentiary chain will ever be common
to every member of the putative class," PREPA adds.
The plaintiffs are asking U.S. District Judge Jay A. Garcia-
Gregory to certify a class of all PREPA customers who paid a fuel
oil surcharge on their electricity bill between 2002 and 2016 to
join in the Racketeering Influenced and Corrupt Organizations Act
claims they've leveled against the utility.
The alleged fraud stems from a consent decree PREPA entered into
with the EPA in 1999 for violations of the Clean Air Act requiring
it to purchase and burn fuel at its power plants that meets
certain environmental specifications.
For over a decade, PREPA has allegedly conspired with a "cartel"
of oil suppliers to purchase cheap, dirty fuel that doesn't meet
those standards, but has continued to charge customers as if it
does. This is all made possible, the customers say, by PREPA's
cozy relationship with several testing labs that the utility pays
off in order to secure a clean bill of health for fuel that
actually falls far below the specifications required by the
consent decree.
Puerto Rico's Senate, comptroller and other public agencies have
been investigating the alleged fraud for years, and one senator
has publicly called the alleged scheme "a monumental fraud."
The customers say calculating damages will be easy, since their
expert can simply calculate the rate customers should have paid
given the market price of the dirty fuel, and then subtract that
figure from the inflated premiums they were actually charged.
PREPA said it's not so simple, however. Only 19 percent of the
customer accounts covered by the class period were active for that
entire period, for example, and the period covers roughly 3,000
fuel shipments received by PREPA.
"In-depth shipment-by-shipment inquiries would be needed to
evaluate, based on the specific circumstances surrounding each and
every one of the thousands of deliveries within the proposed class
period," prove they were fraudulent and damaged customers, and
then calculate an overall damages model, PREPA said.
PREPA said each of those "full-blown trials-within-a-trial" would
require multiple witnesses, "highly technical documentary
evidence" and attempts to "reconstruct post-hoc the composition of
fuel oil that no longer exists because it was burned (years ago)
to generate electricity."
On top of that, some of the shipments were made by suppliers like
Petrobras America Inc. that have been named as co-defendants in
the suit, while others were made by suppliers that haven't been
named . PREPA said that will make it even harder to prove which
shipments were "fraudulent" and which weren't.
PREPA also said that RICO's four-year statute of limitations may
have run out for many of the proposed class members. The clock
for RICO claims starts to tick when plaintiffs "knew or should
have known of their injuries," and reports about PREPA allegedly
cheating on its fuel standards go back to the early aughts, PREPA
said.
"Statute of limitations defenses that "focus on the contents of
the plaintiff's mind [are] not readily susceptible to classwide
determination,' PREPA said, quoting from Thorn v. Jefferson-Pilot
Life Insurance Co. "That is exactly the situation here."
Neither party responded on Nov. 6 to requests for comment.
The plaintiffs are represented by Jane Becker Whitaker of the Law
Offices of Jane Becker Whitaker, Steve Berman and Elizabeth Fegan
of Hagens Berman Sobol Shapiro LLP, J. Barton Goplerud and Andrew
Howie of Hudson Mallaney Shindler & Anderson PC and Daniel Karon -
- dkaron@karonllc.com -- of Karon LLC.
PREPA is represented by Rafael E. Barreto-Sola, Arturo Diaz-
Angueira, Doris M. Gongon-Colon, Victoria D. Pierce-King and
Maraliz Vazquez-Marrero of Cancio Nadal Rivera & Diaz PSC; Daniel
Perez-Refojos -- daniel.perez@oneillborges.com -- of O'Neill &
Borges; and Andres W. Lopez of The Law Offices of Andres W. Lopez
PSC.
The suit is Ismael Marrero Rolon v. Autoridad de Energia Electrica
aka Puerto Rico Electric Power Authority, case number 3:15-cv-
01167, in the U.S. District Court for the District of Puerto Rico.
The case is assigned to Judge Jay A. Garcia-Gregory. The case was
filed February 24, 2015. [GN]
SAUL CHEVROLET: Court Denies Certification in Wage and Hour Suit
----------------------------------------------------------------
The United States District Court for the Northern District of
California, San Jose Division, issued an Order denying with
prejudice the Plaintiff's Second Motion to Conditionally Certify
FLSA Collective Action in the case captioned MARCOS RIVERA,
Plaintiff, v. SAUL CHEVROLET, INC., et al., Defendants, Case No.
16-CV-05966-LHK (N.D. Cal.).
Plaintiff was working at Cardinale Mazda and was paid $3,000 per
month while working for Defendants and was promised commissions
based on sales. Plaintiff alleges, however, that the commission
structure was a mirage. Plaintiff asserts that, as a result,
Plaintiff was entitled to payment for each of his hours worked,
including substantial overtime worked at one and one-half times
his regular rate of pay, based on his salary). Plaintiff also
alleges that Defendants required Plaintiff and other employees to
work off the clock, which resulted in unpaid wages and unpaid
overtime.
Under the FLSA, an employee may bring a collective action on
behalf of other similarly situated employees. In contrast to class
actions pursuant to Rule 23 of the Federal Rules of Civil
Procedure, potential members of a collective action under the FLSA
must opt in to the suit by filing a written consent with the court
in order to benefit from and be bound by a judgment.
To show that Plaintiff is similarly situated to the other
collective action members, under the notice-stage standard,
Plaintiff must provide substantial allegations, supported by
declarations or discovery, that the putative class members were
together the victims of a single decision, policy, or plan. These
allegations and evidence must show a reasonable basis for
Plaintiff's claim for class-wide conduct.
Plaintiff submits a declaration in support of the instant motion
in which Plaintiff states that he worked 52 hours per week on
average and that he was not paid overtime for the hours in excess
of 40 hours in the week. Plaintiff also states in his declaration
that while Plaintiff was employed by Defendants, he (1) observed
[his] co-workers work more than 8 hours per day and more than 40
hours in a week; and (2) surmised that employees at Defendants'
other nearby dealerships worked overtime based on the timing of
phone calls and the things that those employees told him over the
phone and the fact that he often observed cars still parked in the
other nearby dealerships' parking lots after he left work.
Although these statements in Plaintiff's declaration constitute
evidence that other workers employed by Defendants worked overtime
hours, Plaintiff nonetheless falls short of satisfying his
evidentiary burden. This is because Plaintiff's declaration fails
to provide any facts that demonstrate or even weakly suggest that
these other workers were not paid overtime wages for their
overtime hours. Indeed, nowhere in his declaration does Plaintiff
even state that these other employees worked unpaid overtime.
Further, Plaintiff has not submitted any declarations from any
other putative collective action members. Plaintiff's only other
declaration is from his attorney, Kyle Todd.
Plaintiff also fails to offer any evidence that the alleged policy
of withholding overtime pay extended to all Defendants and their
dealerships.
Plaintiff offers no evidence to suggest that any employee besides
Plaintiff worked unpaid overtime. Thus, Plaintiff also necessarily
fails to provide evidence that any putative collective action
member worked unpaid overtime at any dealership other than the
Cardinale Mazda in Corona, California. The named plaintiff must
demonstrate that there existed at least one similarly situated
person at a facility other than his own. As a result, Plaintiff's
evidence does not provide a reasonable basis to conclude that a
policy of withholding overtime pay extends to all Defendants and
their dealerships.
A full-text copy of the District Court's November 2, 2017 Order is
available at http://tinyurl.com/yb3pxwlbfrom Leagle.com.
Marcos Rivera, Plaintiff, represented by Kyle James Todd --
kyle@kyletodd.com -- Law Offices of Kyle Todd.
Marcos Rivera, Plaintiff, represented by Jacob John Larsen, Law
Offices of Kyle Todd & Zachary James Ritter, Law Office of Kyle
Todd, 611 Wilshire Blvd Ste 1000. Los Angeles, CA 90017-2906.
Saul Chevrolet, Inc., Defendant, represented by Shaun Jordan Voigt
-- svoight@fisherphillips -- Fisher and Phillips LLP.
Cardinale Automotive Group of Tahoe, Inc., Defendant, represented
by Shaun Jordan Voigt, Fisher and Phillips LLP.
Cardinale Oldsmobile GMC Truck, Inc., Defendant, represented by
Shaun Jordan Voigt, Fisher and Phillips LLP.
Cardinale AG Motorbike, Inc., Defendant, represented by Shaun
Jordan Voigt, Fisher and Phillips LLP.
Cardinale Nissan, Inc., Defendant, represented by Shaun Jordan
Voigt, Fisher and Phillips LLP.
Cardinale Protective Services, Inc., Defendant, represented by
Shaun Jordan Voigt, Fisher and Phillips LLP.
Cardinaleway Nevada AG Inc.., Defendant, represented by Shaun
Jordan Voigt, Fisher and Phillips LLP.
Cardinale Automotive Group-Arizona, Inc., Defendant, represented
by Shaun Jordan Voigt, Fisher and Phillips LLP.
Cardinaleway Mazda at Peoria, Defendant, represented by Shaun
Jordan Voigt, Fisher and Phillips LLP.
SIMMONS FOODS: Fights ACLU's Human Trafficking Class Action
-----------------------------------------------------------
Erica Shaffer, writing for Meat+Poultry, reports that Simmons
Foods Inc., Siloam Springs, Arkansas, has denied any association
with a rehabilitation and recovery program accused of forced labor
and human trafficking.
The American Civil Liberties Union (ACLU) in Oklahoma filed a
federal lawsuit naming Simmons Foods and six other defendants on
allegations that the companies engaged in a human trafficking and
forced labor scheme disguised as a rehabilitation and recovery
program called Drug and Alcohol Recovery Program (DARP). The ACLU
is seeking class-action status for the lawsuit.
In a statement, the company said "Simmons has no current
relationship whatsoever with DARP. These claims are inconsistent
with Simmons' operational policies and core values, and while
Simmons cannot comment on the specifics of any pending litigation
related to this matter, we want to assure our customers,
employees, and communities that we are prepared to use every
resource at our disposal to vigorously defend the company."
The ACLU alleges that the non-profit DARP forced the plaintiffs
-- and possibility 2,000 other individuals over a 10-year period -
- to work ". . . thousands of uncompensated . . . " hours for the
businesses and individuals named in the lawsuit.
"This forced labor scheme was developed by defendant
Raymond Jones in conjunction with others in the poultry processing
industry, who together created a pipeline for forced labor
performed under threats of imprisonment and judicial punishment,"
court documents state. "To accomplish this, Jones and the poultry
company Peterson Farms, now owned by defendant Simmons Foods Inc.,
created DARP, a purportedly "not for profit" organization which
operates labor camps to house workers under the guise of
rehabilitation and recovery services."
Up to 80 male workers at a time are sent through the program,
which has facilities in Tahlequa, Oklahoma and Decatur, Arkansas.
Pastor Glenn E. Whitman, who is named as defendant in the lawsuit,
allegedly provided the workers to Simmons, R&R Engineering Co.
Inc., Hendren Plastics Inc. and Western Alliance Inc., formerly
known as Jer-Co Industries Inc.
Simmons Foods is a poultry processing company with self-reported
sales of $740 million. The company has operations in Arkansas,
Missouri and Oklahoma, 4,700 employees and six plants.
Court documents state that plaintiffs were not paid for the hours
they worked. Instead, some workers received a "gratuity check" of
$500 for completing the six-month program or $1,000 for one year.
However, gratuity checks were disbursed at Jones' discretion.
Workers were kept in cramped quarters infested with bed bugs,
according to court documents, and were given spoiled or expired
food for meals.
Additionally, the workers who needed treatment for substance abuse
didn't receive help, the plaintiffs allege.
"Plaintiffs and putative class members found themselves at DARP
Inc as a court sentence for criminal charges or a plea deal, in
order to comply with drug court requirements, or by voluntarily
requesting in-patient drug treatment during the course of
probation," the lawsuit said. "Some of the plaintiffs in this
action desperately needed drug and/or alcohol treatment and were
sent to DARP because they lacked health insurance or the financial
resources to pay for in-patient drug treatment. Others did not
need drug treatment at all, and instead were sent to DARP by a
court as an alternative sentencing mechanism for non-drug related
activity."
On the ACLU Oklahoma website, Brady Henderson, legal director,
wrote ". . . Alternatives to incarceration are an important
component to battling the mass incarceration crisis. But
profiteering schemes like DARP are not the answer. Without proper
oversight, qualified counselors, and meaningful services,
incarceration alternatives like this one are ripe for abuse. In
the case of DARP, human trafficking is the only accurate
description for the forced labor, lack of medical care and
appalling living conditions that the plaintiffs suffered through."
[GN]
SONIC: Faces Data Breach Class Action in Texas
----------------------------------------------
John Suayan, writing for South East Texas Record, reports that
Dallas attorney William B. Federman has filed a class action
complaint on behalf of a Grand Prairie woman who claims Sonic
allowed her personal identifiable information to be stolen.
The lawsuit, filed on Nov. 3 in the Dallas Division of the
Northern District of Texas, states that Dometric Pearson and the
fast food chain's other costumers lost their PII to wrongdoers as
a result of a cybersecurity incident which occurred on or around
last Sept. 26.
According to recent court papers, Sonic announced that its
"payment system had been breached and up to five million credit
card and debit card accounts had been stolen."
"This data is being sold on the black market," the original
petition says. "Criminals use the data to make fraudulent charges
to Sonic customers' accounts."
It adds the eatery's aforementioned payment system was more than
30 years old, stating many franchises' systems have not received
updates.
A jury trial is requested.
Dallas Division of the Northern District of Texas Case No. 3:17-
CV-3045
[GN]
SPECIALIZED LOAN: Gordon Sues Over Disputed Credit Reports
----------------------------------------------------------
Corey Delon Gordon, Sr., individually and on behalf of others
similarly situated, Plaintiffs, v. Specialized Loan Servicing LLC,
Defendant, Case No. 17-cv-01196, (W.D. Okla., November 6, 2017),
seeks damages, costs and fees arising from violations of the Fair
Debt Collection Practices Act.
Plaintiff obtained copies of consumer/credit reports from the
Defendant that listed an alleged/disputed debt without any
validation and verification of the debt. Defendant failed to mark
Gordon's credit reports as disputed, resulting in mental anguish,
emotional distress, loss of time, loss of credit opportunity,
lowered credit scores and costs, says the complaint. [BN]
Plaintiff is represented by:
Brian L. Ponder, Esq.
BRIAN PONDER LLP
200 Park Avenue, Suite 1700
New York, NY 10166
Telephone: (646) 450-9461
Facsimile: (646) 607-9238
Email: brian@brianponder.com
T-MOBILE USA: Court Refuses to Remand "Black" Labor Suit
--------------------------------------------------------
The United States District Court for the Northern District of
California issued an Order denying Plaintiff's Motion to Remand
the case captioned JESSE BLACK, Plaintiff, v. T-MOBILE USA, INC,
Defendant, Case No. 17-cv-04151-HSG (N.D. Cal.).
On January 31, 2017, Plaintiff filed this putative labor and
employment class action in Alameda Superior Court. Plaintiff
alleges that he worked for Defendant as a Senior Field Technician
and was denied adequate overtime compensation as well as meal and
rest periods from approximately 2008 through 2015.
Defendant removed the action to federal court under the Class
Action Fairness Act (CAFA).
A defendant may remove any civil action to federal court where the
district court would have original jurisdiction over the action.
To do so, a party seeking removal must file a notice of removal
within 30 days of receiving the initial pleading or within 30 days
of receiving an amended pleading, motion, order or other paper
from which it may first be ascertained that the case is one which
is or has become removable.
CAFA vests the district courts with original jurisdiction over
civil actions in which the amount in controversy exceeds $5
million, there is minimal diversity of citizenship between the
parties, and the action involves at least 100 class members
Plaintiff challenges Defendant's removal procedure, contending
that the notice is both untimely and fails to establish CAFA
jurisdiction. Plaintiff contends that Defendant failed to satisfy
its burden of demonstrating that the amount in controversy exceeds
$5 million.
Timeliness
Plaintiff would have the Court penalize Defendant for conducting
some discovery before filing its notice of removal. The Court
declines to do so. As the Ninth Circuit has stated, CAFA grants
parties "time to develop in state court the facts necessary to
support federal jurisdiction. That is precisely what Defendant did
here and the Court finds that removability of the action under
CAFA was not apparent until at least the parties' meet and confer
call on July 10, 2017. Only at that time did Plaintiff confirm
that he is alleging that he was under Defendant's control for the
entire time that he was on-call (24/7) and is seeking unpaid wages
for that entire time.
Accordingly, the Court finds that Defendant timely filed for
removal on July 21, 2017.
Amount in Controversy
Plaintiff next challenges whether Defendant has established by a
preponderance of the evidence that the amount in controversy
exceeds CAFA's $5 million jurisdictional threshold. When
evaluating the amount in controversy, the Court must determine
whether it is more likely than not that the amount in controversy
exceeds $5 million.
Based on these declarations and the allegations in the complaint,
Defendant calculates that Plaintiff is seeking over $6 million in
unpaid overtime for technicians' on-call time alone. In reaching
this figure, Defendant relies on several assumptions about
technicians' work schedule and compensation. Plaintiff challenges
just two of these underlying assumptions.
First, Defendant assumes that while on call, technicians responded
to and were compensated for an average of 10.68 hours responding
to on-call work. Second, Defendant assumes technicians worked and
again were compensated for 15 hours of overtime a week. Defendant
then included this compensation in its calculations for the class
members' regular rate of pay.
Plaintiff states that in doing so, Defendant erroneously
extrapolated from information about the named Plaintiff to the
class a whole because Defendant based its assumption that
technicians were compensated for 10.68 call out hours on
Plaintiff's own payroll records. And Defendant based its
assumption that class members worked 15 hours of overtime a week
on the allegation that the named Plaintiff typically worked 40-55
hours a week and that his claims are typical of the other putative
class members.
Even if the Court agreed that Defendant's two assumptions are
flawed, Plaintiff's claim for unpaid overtime still exceeds the $5
million amount in controversy. Assuming Plaintiff was not
compensated for any call out or overtime hours, Plaintiff's
regular rate of pay would decrease from $20.01 in Defendant's
calculations. Using this revised figure in Defendant's
calculations, Plaintiff is still conservatively seeking over $5
million in unpaid overtime for putative class members' on-call
time alone.
The Court also notes that Defendant's conservative calculations
assume a minimum wage of $8.00, and do not account for the
increase in minimum wage over time in 2014 ($9.00), 2016 ($10.00)
and 2017 ($10.50). In short, the Court finds that Defendant has
established by a preponderance of the evidence that the amount in
controversy exceeds $5 million.
A full-text copy of the District Court's November 2, 2017 Order is
available at http://tinyurl.com/ybteuy3ffrom Leagle.com.
Jesse Black, Plaintiff, represented by Arnab Banerjee --
Arnab.Banerjee@capstonelawyers.com -- Capstone Law APC.
T-Mobile USA, Inc, Defendant, represented by Gregory G. Iskander -
- giskander@littler.com -- Littler Mendelson, P.C., Keith Adam
Jacoby -- kjacoby@littler.com -- Littler Mendelson, Sophia Behnia
-- sbehnia@littler.com -- Littler Mendelson, P.C. & Perry Kim
Miska -- pmiska@littler.com -- Jr., Littler Mendelson, P.C.
TEZOS: Faces Securities Class Action Over $232-Mil. ICO
-------------------------------------------------------
PYMNTS reports that Tezos, the technology project that raised $232
million via an initial coin offering in July, is being sued in a
class-action lawsuit.
Reuters, citing a lawsuit filed on Oct. 25 in California Superior
Court in San Francisco, argues the people behind Tezos violated
U.S. securities laws and defrauded investors in its ICO because it
hasn't issued any digital coins. What's more, the lawsuit
contends Tezos told participants that they were making a donation
and that they may never receive any tokens as a result of
investing in the ICO.
The defendants include the co-founders of the project,
Kathleen and Arthur Breitman; their Delaware-based company,
Dynamic Ledger Solutions; and Strange Brew Strategies, a
communications company that was hired to sell the venture to
investors. Additional defendants include the Tezo Foundation, a
Swiss entity that the Breitmans created to handle the ICO, as well
as its president Johann Gevers.
Brian Klein, an attorney for the couple, told Reuters the lawsuit
was without merit and that the Breitmans plan to "aggressively
defend themselves."
According to Reuters, the lawsuit was prompted by an investigation
by the news agency. An Oct. 18 report said that Gevers and the
Breitmans are fighting over control of Tezos, which has resulted
in significant delays to the venture. The goal of the venture is
to create a computerized network for transactions that rely on
blockchain technology, which is the underpinning for bitcoin and
other cryptocurrencies.
The plaintiffs are seeking a refund as well as damages. The
lawsuit contends that the company sold unregistered securities.
Other law firms told Reuters they are looking into the ICO for
potential lawsuits.
Ever since ICOs blasted on the scene, enabling startups to make
millions of dollars, regulators around the globe have been warning
about the risks this form of fundraising poses to investors.
China has banned ICOs altogether, and governments from the U.S. to
Russia have warned about the practice. [GN]
TGI FRIDAY'S: Wins Summary Judgment in "Calabrese" FLSA Suit
------------------------------------------------------------
The United States District Court for the Eastern District of
Pennsylvania issued a Memorandum and Order granting Defendant's
Motion for Summary Judgment in the case captioned ADAM CALABRESE,
Individually and on behalf of all others similarly situated
Plaintiff, v. TGI FRIDAY'S INC., et al., Defendants, Civil Action
No. 16-CV-0868 (E.D. Pa.).
This putative collective/class action has been brought before the
Court on Motion of the Defendants for entry of summary judgment in
their favor on all of Plaintiff's claims under the Fair Labor
Standards Act, the Pennsylvania Minimum Wage Act and the New
Hampshire Minimum Wage Law.
Plaintiff worked as a server at the Montgomeryville Friday's. Mr.
Calabrese resumed working at the Friday's in Concord, New
Hampshire, where he remained until February 2015. In both of the
TGI Friday's restaurants in which Plaintiff worked, he was paid on
an hourly basis, with Friday's paying him a cash wage of $2.83 per
hour in Pennsylvania and $3.26 hourly in New Hampshire plus tips.
In the event that Plaintiff did not earn enough in tips to bring
his hourly wage up to the minimum wage, Friday's was to make up
the difference. Plaintiff avers that he typically worked some 30
hours per week at both the Concord, NH and Montgomeryville, PA
locations, usually in 5 shifts lasting approximately 6 hours and
beginning around 4 p.m. and ending at 10 p.m.
Summary Judgment Standards
In ruling upon a motion for summary judgment, the courts are
generally guided by the language contained in Fed. R. Civ. P.
56(a): "A party may move for summary judgment, identifying each
claim or defense or the part of each claim or defense on which
summary judgment is sought. The court shall grant summary judgment
if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law. The court should state on the record the reasons for
granting or denying the motion."
This case essentially presents two claims:
(1) that Defendant violated federal and applicable state labor
and wage laws by failing to inform him that it would be taking a
tip credit in paying him his wages; and
(2) that it violated New Hampshire law by requiring him to
participate in a tip pool. In pressing these claims, Plaintiff is
first and foremost invoking the federal Fair Labor Standards Act.
Under Section 6 of the FLSA 29 U.S.C. Section 206, "(a) Every
employer shall pay to each of his employees who in any workweek is
engaged in commerce or in the production of goods for commerce, or
is employed in an enterprise engaged in commerce or in the
production of goods for commerce, wages at the following rates:(1)
except as otherwise provided in this section, not less than $7.25
an hour." 29 U.S.C. Section 206(a)(1). This rate is the same
under both Pennsylvania and New Hampshire state law.
However, Congress carved out an exception to the minimum wage for
certain occupations in which tips can reliably be expected to
supplement wages This so-called tip credit is described in 29
U.S.C. Section 203(m): "In determining the wage an employer is
required to pay a tipped employee, the amount paid such employee
by the employee's employer shall be an amount equal to: (1) the
cash wage paid such employee which for purposes of such
determination shall be not less than the cash wage required to be
paid such an employee on the date of the enactment of this
paragraph; and (2) an additional amount on account of the tips
received by such employee which amount is equal to the difference
between the wage specified in paragraph (1) and the wage in effect
under section 6(a)(1) [29 U.S.C. Section 206(a)(1)]. The
additional amount on account of tips may not exceed the value of
the tips actually received by an employee. The preceding 2
sentences shall not apply with respect to any tipped employee
unless such employee has been informed by the employer of the
provisions of this subsection, and all tips received by such
employee have been retained by the employee, except that this
subsection shall not be construed to prohibit the pooling of tips
among employees who customarily and regularly receive tips."
The District Court finds that Defendant has met its burden of
showing that it fulfilled its notice obligations with respect to
the tip credit at both the New Hampshire and Pennsylvania
restaurants where Plaintiff worked. Indeed, the record here
reflects first, that it was Defendant's prescribed policy and
procedure to inform all newly-hired tipped employees, including
servers, both verbally and in writing that they would be paid an
hourly rate which was less than the mandated minimum wage because
they received tips provided that they received tips in a
sufficient amount to cover the tip credit, what the amount of
their cash wages would be and the amount of the tip credit. This
information was conveyed orally by the new hire's training
manager, as they reviewed all of the new hire documents with the
new employee at the time of their orientation, and in tip credit
notification forms which all new employees were required to
acknowledge by signing.
In addition, this information is also disseminated to Friday's
tipped employees through the copy of the employee handbook which
each of them receives at the time of hire, which is verbally
explained to them by their manager, and which each employee is
required to review and on which they are tested.
Specifically, the handbook includes provisions which explain the
tip credit and explain that if a tipped employee's compensation
falls below minimum wage or they failed to make the requisite
minimum amount in tips, Friday's would pay them the difference
between the cash wage and minimum wage. Each employee is required
to either electronically or on paper sign an acknowledgment and
receipt verifying that they read and understood the handbook.
In response to the Motion for Summary Judgment, Plaintiff
essentially relies solely upon his own deposition testimony that
he does not recall ever hearing the term "tip credit" and he has
no recollection of ever being told that Defendant would be taking
a tip credit when he started working at the Concord, New Hampshire
location.
Although Plaintiff acknowledged that he understood he would be
paid a wage plus tips and that this understanding was based upon
something that he was told by his managers during the interview
process, he does not remember being told by Friday's how he would
be paid, what his anticipated job duties would be or the work he
would be expected to perform as a server, being told anything
about his work hours or the shifts he might be working, or how
much he might expect to receive in tips.
Based upon all of this evidence, the District Court concludes that
contrary to the assertions contained in his complaint, Plaintiff
was in fact notified by Friday's that both New Hampshire and
Pennsylvania were tip credit states and the restaurants where he
was employed would be taking a credit against the minimum wage and
the amount of the credit which would be taken. The District Court
therefore finds that judgment as a matter of law on this claim is
properly entered in favor of TGI Friday's and against the
Plaintiff in no amount.
Consequently, the District Court finds that judgment as a matter
of law is also appropriately entered in Defendant's favor on
Plaintiff's claim that he was unlawfully compelled to participate
in a tip pool in violation of New Hampshire law.
A full-text copy of the District Court's November 2, 2017
Memorandum and Order is available at http://tinyurl.com/yapwa83f
from Leagle.com.
ADAM CALABRESE, Plaintiff, represented by ARKADY ERIC RAYZ --
erayz@kalraylaw.com -- KALIKHMAN & RAYZ LLC,
ADAM CALABRESE, Plaintiff, represented by GERALD D. WELLS, III --
gwells@cwglaw.com -- CONNOLLY WELLS & GRAY, LLP & ROBERT J. GRAY -
- rgray@cwglaw.com -- CONNOLLY WELLS & GRAY, LLP.
TGI FRIDAYS INC., Defendant, represented by GERALD L. MAATMAN,
JR., SEYFARTH SHAW, JACOB OSLICK, SEYFARTH SHAW LLP, JENNIFER A.
RILEY, SEYFARTH SHAW, SCOTT RABE, SEYFARTH SHAW LLP, GINA R.
MERRILL, SEYFARTH SHAW LLP & KRISTIN MCGURN, SEYFARTH SHAW LLP.
233 South Wacker Drive, Suite 8000, Chicago, IL 60606
UNITED STATES: Black Farmers Call on Trump to Accept Court Ruling
-----------------------------------------------------------------
Tom Charlier, writing for The Commercial Appeal, reports that a
Memphis-based organization representing black farmers called on
President Trump on Nov. 6 to accept a court ruling that could lead
to payouts totaling more than $1 billion to growers who claim they
were denied crop loans and other assistance based on race.
More than 100 farmers and heirs of farmers crowded into the
Downtown offices of the Black Farmers and Agriculturists
Association to hear that their case against the U.S. Department of
Agriculture survived a recent court challenge.
The U.S. Court of Appeals for the District of Columbia Circuit
issued an order denying the USDA's motion for a summary ruling
that essentially would have thrown out the claims of some 15,000
black farmers and their heirs.
"This is a monumental decision," BFAA President Thomas Burrell
said. "It vindicates our movement, it vindicates our
organization."
The case, brought by descendants of Earnest Lee Boyland, a farmer
from Mason, Tennessee, is a class-action lawsuit that represents a
secondary wave of claims alleging pervasive discriminatory
practices by USDA.
In 1999, a federal appellate judge approved a settlement of a
class-action suit brought by African-American farmers who claimed
the department discriminated against them between 1983 and 1997.
By the end of 2011, nearly 16,000 growers had collected
settlements totaling $1.06 billion.
But because tens of thousands of farmers missed the September 2000
deadline for filing claims under the initial suit, Congress added
a provision to the 2008 Farm Bill allowing them to petition the
court. In 2010 Congress appropriated $1.2 billion for the second-
phase of settlements.
The Boyland suit contends that a private claims administrator
hired by USDA improperly denied the plaintiffs' efforts to be part
of the second-phase settlement.
Mr. Burrell said the organization is urging the Trump
Administration to accept the Oct. 31 appellate court ruling and
not try to block the black farmers' claims.
"He can call the Department of Justice, Mr. (Attorney General
Jeff) Sessions, and say, 'This is wrong,'" Mr. Burrell said.
David A. Hall, a pastor who chairs a committee supporting the
BFAA, told the farmers and family members on Nov. 6 that their
patience will be rewarded.
"You are the cream of the cream of the crop. You are the ones
that have endured, you are the ones that have stuck it out. And I
hope and pray that we will meet one another at the finish line --
check in hand," Mr. Hall said.
"This is not something that somebody has given you. This is
something that you deserve . . ." [GN]
VALBIN CORP: Court Grants Conditional Certification in "Saleh"
--------------------------------------------------------------
The United States District Court for the Northern District of
California, San Jose, issued an Order granting Motion for
Conditional FLSA Collection Action Certification and Issuance of
Notice in the case captioned RESHAD SALEH, Plaintiff, v. VALBIN
CORPORATION, Defendant, Case No. 17-CV-00593-LHK (N.D. Calif.).
Saleh alleges that he is a former employee of Valbin who worked as
a non-exempt role player at the Fort Hunter Liggett Military Base
in California. Saleh alleges that during a rotation, role players
were required to be in character twenty-four hours per day. Once
a role player arrived at Fort Hunter Liggett to begin a rotation,
he was not allowed to leave the base for any reason. Role players
resided and slept in the simulated village, military tents, or
similar accommodations with no running water, electricity,
heating, or air conditioning, according to Saleh.
Saleh alleges that exercises occurred at all hours of the day and
night and that as a result his sleep was regularly interrupted and
he was not able to get five hours of uninterrupted sleep. Saleh
alleges that he was not compensated for sleep time. Saleh alleges
that he regularly worked more than forty hours per week and was
not paid overtime in accordance with 29 U.S.C. Section 207.
Under the Fair Labor Standards Act, an employee may bring a
collective action on behalf of other similarly situated employees.
29 U.S.C. Section 216(b). In contrast to class actions pursuant
to Rule 23 of the Federal Rules of Civil Procedure, potential
participants in a collective action under the FLSA must opt in to
the suit by filing a written consent with the court in order to
benefit from and be bound by a judgment.
Saleh seeks to bring this action on behalf of all current and
former Role-Players who worked for Defendant at Fort Hunter-
Liggett at any time between February 3, 2014 and the present.
Saleh argues that he is similarly situated to the putative
collective action participants because Valbin systematically: (1)
failed to provide Plaintiffs with private quarters in a homelike
environment; (2) failed to provide Plaintiffs with at least five
hours of uninterrupted sleep time per day; and (3) allowed
Plaintiffs to work in excess of 40 hours per week without being
paid all of their overtime.
Valbin opposes Saleh's motion for conditional certification on
several grounds. First, Valbin argues that Saleh has not met his
burden to show that he is similarly situated to the other
collective action participants he seeks to represent. Second,
Valbin argues that if the Court conditionally certifies a
collective action, the time period defining the collective action
membership should only reach back two years, not three, because
there is no proof of a willful violation.
Valbin vigorously disputes Saleh's factual allegations on
everything from sleeping conditions to overtime pay, but Valbin
does little to argue that the differences in job classification
would translate into different applications of the policies Saleh
alleges, were such policies to exist. In fact, in disputing
Saleh's factual allegations, Valbin consistently refers to all
role players collectively, rather than differentiating between
COBs and FLSs, for example.
Valbin does not contend that role players with different job types
or job titles worked different hours, were subject to different
overtime policies, had different sleeping arrangements, or were
subject to different policies about remaining on base. As a
result, the Court concludes that the fact that Valbin's role
players at Fort Hunter Liggett were categorized differently for
pay or had different job titles does not defeat conditional
certification.
Resolution of Disputed Facts is Not Proper at the Notice Stage
Valbin's evidence creates a factual dispute: Saleh and Ayon
submitted sworn declarations claiming certain policies exist, and
Valbin submitted evidence showing the opposite. At the notice
stage, however, it is not the Court's role to resolve factual
disputes or decide substantive issues going to the ultimate merits
Although the evidence submitted by the defendants tends to
contradict the plaintiffs' evidence and to reveal potential
weaknesses in their case, it does not preclude conditional
certification.
Thus, the issues raised by Valbin are more properly dealt with at
the second stage of the certification process or once the case
reaches the merits phase of litigation.
Valbin argues that if a collective action is conditionally
certified, the scope of the putative collective action should be
limited to the last two years, not the last three years, because
Saleh has not adduced any evidence that Valbin willfully violated
the statute.
Saleh alleges that Valbin was aware of, and was able to comply
with, all aspects of FLSA. Compl. Saleh alleges that Valbin was
aware of the requirements under the FLSA to properly compensate
employees. Saleh contends that Valbin's failure and/or refusal to
properly compensate him at the rates and amounts required by the
FLSA was willful and knowing. In support of these allegations,
Saleh claims that employees would regularly complain about not
being paid for sleep time, and were simply told if they did not
like it they could go home.
Saleh also alleges that he was told but disagreed and complained
about the policy of not compensating role players for sleep time
when they were awoken for exercises in the middle of the night.
Again, Saleh states that he was told if he did not like it, he
could simply go home.At this preliminary stage, the Court finds
that Saleh has sufficiently alleged willfulness.
Notice will be provided to all current and former role players who
have worked for Valbin at Fort Hunter Liggett since February 6,
2014, three years before the filing of the instant complaint. The
Court's decision to give notice for the three-year time period
does not indicate a finding on willfulness.
A full-text copy of the District Court's November 2, 2017 Order is
available at http://tinyurl.com/yd2ufveufrom Leagle.com.
Reshad Saleh, Plaintiff, represented by Sean Christopher Davis,
Phillips Dayes Law Firm PC, 3101 N. Central Ave., Ste. 1500
Phoenix, AZ 85012
Reshad Saleh, Plaintiff, represented by Trey A.R. Dayes, III,
Phillips Dayes Law Firm PC, pro hac vice & Dennis L. Evans,
Phillips Dayes Law Firm PC. 3101 N. Central Ave., Ste. 1500
Phoenix, AZ 85012
Valbin Corporation, Defendant, represented by Veronica Meryl Gray
-- vgray@nossaman.com -- Nossaman LLP, Andrew Christian Crane --
acrane@nossaman.com -- Nossaman LLP & Edward J. Tolchin --
etolchin@offitkurman.com -- Offit Kurman, PA, pro hac vice.
VERDE ENERGY: Court Denies Bid to Dismiss "Coleman" TCPA Suit
-------------------------------------------------------------
The United States District Court for the Southern District of
Illinois issued an Order denying Defendant's Motion to Dismiss or
Stay or Transfer the case captioned CHRISTOPHER COLEMAN,
Plaintiff, v. VERDE ENERGY USA ILLINOIS, LLC, Defendant, No. 3:17-
cv-00062-DRH-SCW (S.D. Ill.).
Plaintiff filed a one-count class action complaint naming
defendant Verde Energy USA Illinois, LLC, and asserting violation
of section 227(b)(1)(A)(iii) of the Telephone Consumer Protection
Act (TCPA). More specifically, plaintiff alleged defendant
routinely utilized an automatic telephone dialing system to place
non-emergency calls to cellular telephone service numbers without
prior express consent. For relief, plaintiff seeks, inter alia,
designation as class representative pursuant to FED. R. CIV. P.
23, damages, and costs.
First-to-File Rule Inapplicable
As a general rule, a federal suit may be dismissed for reasons of
wise judicial administration whenever it is duplicative of a
parallel action pending in another federal court.
Here, it is indisputable two similar actions are pending in two
different district courts, brought by two different plaintiffs,
against two distinct defendants. Due to lack of binding Seventh
Circuit law governing treatment of non-identical plaintiffs
bringing identical suits in different districts, and the fact that
first-to-file is inapplicable under these conditions6 -- the Court
declines to dismiss the instant action. Blair v. Equifax Check
Servs., Inc. 181 F.3d 832, 838 (7th Cir. 1999), where plaintiffs
are different but allege same class/claims in different district
courts, no mechanical rule governs handling of overlapping cases.
Transfer Inconvenient
Pursuant to 28 U.S.C. Section 1404, for the convenience of parties
and witnesses, in the interest of justice, a district court may
transfer any civil action to any other district or division where
it might have been brought or to any district or division to which
all parties have consented. Courts balance the following three
factors in deciding whether to grant or deny request of a
transfer: (1) the convenience of witnesses and parties; (2) cost
of transfer; and, (3) public interest and special circumstances
involved.
The Court finds that transfer of the instant case would be
inconvenient because plaintiff Coleman is a citizen of Illinois,
the alleged TCPA violation transpired in Illinois, and a transfer
of a case dealing with Illinois phone service customer rights-by a
company that specifically engages with Illinois residents-would
contravene public interest. See id. Accordingly, the Court
declines to transfer the instant matter to E.D. Pa.
Stay Denied
The following three factors are balanced when deciding whether to
grant a motion to stay proceedings: (i) whether a stay will unduly
prejudice or tactically disadvantage the non-moving party, (ii)
whether a stay will simplify the issues in question and streamline
the trial, and (iii) whether a stay will reduce the burden of
litigation on the parties and the court.
A clear tactical disadvantage for plaintiff is present as absent
class members would be increasingly more difficult to locate if a
stay were granted. Next, a stay will neither simplify issues,
streamline the trial, nor reduce the burden of litigation because
in each instance a different plaintiff is suing a different
defendant. Finally, defendant has failed to raise an inkling of
foreseeable hardship or inequity as required to entertain a motion
to stay proceedings.
Based on these, defendants' Motion to Dismiss or in the
alternative, to Stay or Transfer is denied.
A full-text copy of the District Court's November 2, 2017 Order is
available at http://tinyurl.com/ya9e72hcfrom Leagle.com.
Christopher Coleman, Plaintiff, represented by James L. Davidson -
- jdavidson@gdrlawfirm.com -- Greenwald Davidson Radbil PLLC, pro
hac vice.
Verde Energy USA Illinois, LLC, Defendant, represented by Vitaly
Libman -- vlibman@hinshawlaw.com -- Hinshaw & Culbertson LLP &
James M. Brodzik -- jbrodzik@hinshawlaw.com -- Hinshaw &
Culbertson LLP.
VOLKSWAGEN AG: Hausfeld Files Suit Over Defeat Device Software
--------------------------------------------------------------
On November 6, 2017, on behalf of more than 15,000 German
consumers affected by the VW diesel emissions scandal, Hausfeld
filed a complaint in the Braunschweig District Court. The filing
is believed to be the largest single consumer complaint ever filed
in a European court. The complaint alleges a claims value of over
EUR357 million ($416 million).
In 2015, the U.S. Environmental Protection Agency revealed that
Volkswagen had been using a defeat device software which
understated the NOx emissions of its diesel vehicles. Volkswagen
later admitted that since 2009 over 11 million vehicles worldwide
had been affected.
Christopher Rother -- christopher.rother@hausfeld.com -- Managing
Partner of Hausfeld RechtsanwÑlte LLP in Berlin said "with the
filing of this complaint, consumers deceived by the manufacturer's
misrepresentations send a strong message to Volkswagen that they
are entitled to compensation for the fraud that induced them to
buy vehicles that should never have been sold in the first place."
Michael Hausfeld, Chairman of Hausfeld LLP praised the filing,
stating: "The resolve of European consumers not to back down in
the face of Volkswagen's defiant refusal to offer similar
compensation in Europe for similar harm underscores the need for
European-wide collective redress mechanisms. To respect the
rights of European consumers and European laws is a testament to
the fact that European consumers are not second class citizens to
anyone."
Volkswagen settled with consumers in the United States for over
$12 billion, but has yet to offer similar compensation to European
consumers. Unlike U.S. class action lawsuits, Germany does not
provide any collective action mechanisms. Therefore, in order for
European consumers to file claims against Volkswagen, they must
each file individually. Hausfeld has been retained by myRight, a
German legal services provider, to create an innovative platform
allowing consumers to band together against Volkswagen.
Since 2016 German consumers have been able to sign up through
www.myright.de to join a group action against Volkswagen. Affected
consumers are still able to register their claims, as Hausfeld
plans to file a second complaint in the Spring.
In September, Hausfeld announced it would be working with the
national consumer groups of The European Consumer Organization
("BEUC") to represent additional car owners affected by the
Volkswagen scandal in Lithuania, Slovakia, Slovenia, and
Switzerland.
Related Lawyers: Michael D. Hausfeld, Christopher Rother, James
Pizzirusso, Laurent Geelhand, Lene Kohl, Fabian Beulke, Sarah
LaFreniere, and Maximilian Becker
For further information or to arrange interviews please contact:
United States
Deborah Schwartz
Media Relations
(240) 355-8838
deborah@mediarelationsinc.com
Europe
Andreas Engel
+49 1575 155 3000
engel@engelpr.de
About Hausfeld
Hausfeld -- http://www.hausfeld.com-- is a lobal law firm with
offices in Berlin, Boston, Brussels, Dusseldorf, London, New York,
Philadelphia, San Francisco, and Washington, DC. The firm has a
broad range of complex litigation expertise, particularly in
antitrust/competition, financial services, sports and
entertainment, environmental, mass torts, consumer protection, and
human rights matters, often with an international dimension. [GN]
WELK RESORT: "Miholich" Sues Over Illegal Telemarketing Calls
-------------------------------------------------------------
Kyle Miholich, individually and on behalf of all others similarly
situated, Plaintiffs, v. Welk Resort Group, Inc., Soleil
Communications, Inc., Does 1-10, ABC Corporations 1-10, ZYZ, LLC's
1-10, Defendants, Case No. 17-cv-02240, (S.D. Cal., November 2,
2017), seeks damages and injunctive relief for violation of the
Telephone Consumer Protection Act.
Defendants called Miholich on his cell phone number using an
automatic telephone dialing system in an attempt to induce
Plaintiff to attend a timeshare sales presentation. [BN]
Plaintiff is represented by:
Dante T. Pride, Esq.
THE PRIDE LAW FIRM
2831 Camino Del Rio S., Ste. 104
San Diego, CA 92108
Telephone: 619-516-8166
Fax: 619-785-3414
Email: dpride@pridelawfirm.com
WELLS FARGO: Class Members Removed from Lists in "McLaughlin"
-------------------------------------------------------------
The United States District Court for the Northern District of
California, San Francisco Division, issued an Amended Judgment
removing Class Members from the lists in the case captioned
LATASHA McLAUGHLIN, on behalf of herself and all others similarly
situated, Plaintiff, v. WELLS FARGO BANK, N.A., d/b/a WELLS FARGO
HOME MORTGAGE, Defendant, No. 3:15-cv-02904-WHA (N.D. Cal.).
The Final Judgment is amended as follows:
-- Exhibit 1, the list of Damages Class Members, is amended to
remove the names Carla M. Epps, Deceased, Crystal Hickerson and
Jim Slater as Damages Class Members;
-- Exhibit 2, the list of Declaratory Relief Class Members, is
amended to remove the name Crystal Hickerson as a Declaratory
Relief Class Member;
-- Exhibit 3, the list of persons Excluded from the Damages
Class, is amended to add the names Carla M. Epps, Deceased,
Crystal Hickerson, and Jim Slater as persons excluded from the
Damages Class; and
-- Exhibit 4, the list of persons Excluded from the Declaratory
Relief Class, is amended to add the name Crystal Hickerson as a
person excluded from the Declaratory Relief Class.
A full-text copy of the District Court's November 2, 2017 Judgment
is available at http://tinyurl.com/y9fkcn7hfrom Leagle.com.
Latasha McLaughlin, Plaintiff, represented by Aidan Chowning
Poppler -- cpoopler@bermantabacco.com -- Berman Tabacco.
Latasha McLaughlin, Plaintiff, represented by Kristin J. Moody --
kmoody@bermantabacco -- Berman Tabacco, Patricia I. Avery --
pavery@wolfpopper.com -- Wolf Popper LLP, pro hac vice, Matthew
Insley-Pruitt -- MInsley-Pruitt@wolfpopper.com -- Wolf Popper LLP,
pro hac vice & Joseph J. Tabacco, Jr. --
jtabacco@bermantabacco.com -- Berman Tabacco.
Wells Fargo Bank NA, Defendant, represented by Ashley Lynn Shively
-- ashively@reedsmith.com -- Reed Smith LLP, Peter Joseph Kennedy
-- pkennedy@reedsmith.com -- Reed Smith LLP & Raymond A. Cardozo -
- rcardozo@reedsmith.com -- Reed Smith LLP.
WEST CALCASIEU: La. App. Affirms Class Certification in "Emigh"
---------------------------------------------------------------
The Court of Appeal of Louisiana, Third Circuit, issued an Opinion
affirming the Trial Court's judgment Certifying the Class in the
case captioned AARON EMIGH, ET AL., v. WEST CALCASIEU CAMERON
HOSPITAL, ET AL., No. 17-292 (La. App.).
Several of the defendants appeal a trial court judgment certifying
this matter as a class action.
This lawsuit began when Aaron Emigh filed a petition for damages
against West Calcasieu Cameron Hospital (WCCH), alleging that he
had received medical treatment, after which WCCH refused to file a
claim with his health insurance company and hired a third-party
collection agency to collect payment from him directly, in an
attempt to double bill him and his insurance provider. Emigh
filed a first amending and supplemental petition in July 2010,
wherein he sought to have the matter certified as a class action.
A trial court has wide discretion in deciding whether to certify a
class. Subject to the manifest error standard, its factual
findings can only be reversed upon finding, based on the entire
record, no reasonable factual basis for the factual finding and
the fact-finder is clearly wrong.
Louisiana Code of Civil Procedure Article 591, titled
"Prerequisites; maintainable class actions, provides in pertinent
part that one or more members of a class may sue or be sued as
representative parties on behalf of all, only if:
(1) The class is so numerous that joinder of all members is
impracticable.
(2) There are questions of law or fact common to the class.
(3) The claims or defenses of the representative parties are
typical of the claims or defenses of the class.
(4) The representative parties will fairly and adequately
protect the interests of the class.
(5) The class is or may be defined objectively in terms of
ascertainable criteria, such that the court may determine the
constituency of the class for purposes of the conclusiveness of
any judgment that may be rendered in the case. This prerequisite
shall not be satisfied if it is necessary for the court to inquire
into the merits of each potential class member's cause of action
to determine whether an individual falls within the defined class.
Numerosity
With regard to this factor, the trial court found joinder of the
class members would be impractical and that a class action suit
would be the most useful and judicially efficient way to proceed
with these plaintiffs. None of the Appellants have challenged
this factual finding. Amy Johnson, who had previously been
appointed as a corporate representative by WCCH, testified at the
class certification hearing that the hospital determined that more
than 3,000 patients sought treatment at WCCH after being injured
in a MVA between 2000 and 2013. Of those, 254 had been identified
as potential class members.
Thus, the appellate court finds no manifest error in the trial
court's conclusion that the numerosity requirement was met by
Plaintiffs.
Commonality
The commonality requirement is met if plaintiffs can demonstrate
that there is one issue, the resolution of which will affect all
or a significant number of plaintiffs.
In its reasons, the trial court stated: "In the present case, all
persons attempting to be made class members received services from
West Calcasieu Cameron Hospital (WCCH). All persons were subject
to WCCH's attempt to bill in excess of the contracted
reimbursement rate and/or amounts that should have been paid by
the patient's health insurer. The Court finds commonality between
all persons attempting to be certified as a class."
The testimony and evidence presented at the class certification
hearing support the trial court's finding that Plaintiffs met
their burden of proving commonality. Accordingly, the appellate
court finds no manifest error in the trial court's conclusion that
plaintiffs satisfied the requirement found in La.Code Civ.P. art.
591(A)(2).
Typicality
The element of typicality is satisfied if the class
representative's claims arise out of the same event, practice, or
course of conduct giving rise to the claims of the other class
members and those claims arise from the same legal theory.
The testimony and evidence presented by Plaintiffs at the class
certification hearing support their allegations that the
Defendants acted in violation of the prohibitions set out in the
Balance Billing Act. Although each individual Plaintiff may have
suffered varying damages as a result of the Defendants' conduct,
they all allege that those damages were the result of the same
actions, such that any finding of liability will apply to all of
the proposed class members.
The trial court committed no error in determining that typicality
existed among the proposed class representatives.
Adequacy
Each of the proposed class representatives testified that they
intend to pursue this lawsuit until its conclusion. In addition,
Defendants failed to produce any evidence to show that the named
Plaintiffs' claims are in any way antagonist with each other or
with any other potential class members. Given the much discretion
left to the trial court when deciding whether to certify class,
the appellate court cannot say that the trial court manifestly
erred in finding that the proposed class members adequately
represent the class.
Definability
Appellants argue that the proposed class definition is inadequate
because it potentially includes members who suffered no damages.
The appellate court rejects this argument as the court and the
supreme court have clearly stated that a court should not look to
the merits when determining class certification. Moreover, because
a class certification order is always subject to modification or
decertification, any errors to be made in deciding class action
issues should be in favor of and not against the maintenance of
the class action. The appellate court concludes that the class
definition approved by the trial court has been sufficiently
tailored to fit the facts of this matter.
Therefore, mindful of the fact the trial court has the authority
to later modify or decertify the class should it deem it
necessary, we cannot say that it manifestly erred in concluding
that Plaintiffs sufficiently defined the class.
Common Questions of Law and Fact Predominate
The Court finds that the questions of law and fact common to the
class members predominate over the questions affecting only
individual members. In addition, the Court is convinced that a
class action is the fairest and most efficient way to adjudicate
this matter. The main issues in this matter are WCCH's balance
bill procedure and health insurers, which contracted with WCCH,
failure to protect its insureds and enrollees from WCCH's
practice.
These are common issues of law and fact between the class
representatives and the class members. There is no requirement
that every question of law and fact has to be common between the
members, only that the questions of law and fact of the class
predominate those of any individual member.
The judgment of the trial court certifying this matter as a class
action is affirmed.
A full-text copy of the Appellate Court's November 2, 2017 Opinion
is available at http://tinyurl.com/y6u2qnc4from Leagle.com.
J. Lee Hoffoss, Jr., Claude P. Devall, Donald W. McKnight, Hoffoss
Devall, LLC, 517 W. College Street, Lake Charles, Louisiana 70605,
(337) 433-2053, Counsel for Plaintiffs/Appellees, Aaron Emigh,
Glynn Able Benoit, Laura Allison Delouche.
Michael G. Hodgkins, Veron, Bice, Palermo & Wilson, LLC, Post
Office Box 2125, Lake Charles, Louisiana 70602, (337) 310-1600,
Counsel for Plaintiffs/Appellees, Aaron Emigh, Glynn Able Benoit,
Laura Allison Delouche.
Steven Broussard, Aaron Broussard, Broussard & Hart, LLC, 1301
Common Street, Lake Charles, Louisiana 70601, (337) 439-2450,
Counsel for Plaintiffs/Appellees, Aaron Emigh, Glynn Able Benoit,
Laura Allison Delouche.
Robert E. Landry, Peter J. Pohorelsky, Scofield, Gerard,
Pohorelsky, Gallaugher & Landry, 901 Lakeshore Drive, Suite 900,
Lake Charles, Louisiana 70601, (337) 433-9436, Counsel for
Defendant/Appellant, West Calcasieu Cameron Hospital.
Errol J. King, Jr., Layna C. Rush, Daniel P. Guillory, Baker,
Donelson, Bearman, Caldwell & Berkowitz, PC, 450 Laurel Street,
Chase Tower North, 20th Floor, Baton Rouge, Louisiana 70801, (225)
381-7000, Counsel for Defendant/Appellant, UnitedHealthcare
Insurance Company.
Jonathan M. Herman, Brian C. Roux, The Herman Law Firm, 1601 Elm
Street, Suite 2002, Thanksgiving Tower, Dallas, Texas 75201, (214)
624-9805, Counsel for Defendant/Appellant, Louisiana Health
Services and Indemnity Company d/b/a Blue Cross and Blue Shield of
Louisiana.
Charles A. O'Brien, Allison N. Pham, Post Office Box 98029, Baton
Rouge, Louisiana 70898, (225) 295-2454, Counsel for
Defendant/Appellant, Louisiana Health Services & Indemnity Company
d/b/a Blue Cross and Blue Shield of Louisiana.
Robert S. Kleinschmidt, Jr., Attorney at Law, Post Office Box
1154, Lake Charles, Louisiana 70602, (337) 437-3440, Counsel for
Defendant/Appellee, R. J. Moss Enterprises, Inc.
WOLFGANG'S STEAKHOUSE: Averts Class Action Over FACTA Violation
---------------------------------------------------------------
Cara Bayles, David Siegel and Shayna Posses, writing for Law360,
report that Wolfgang's Steakhouse on Nov. 6 beat a proposed class
action over payment card expiration dates on customers' receipts
when a New York federal judge found, citing the U.S. Supreme
Court's Spokeo decision, that the customers weren't actually
harmed by the revealed data.
After four complaints and as many motions to dismiss, U.S.
District Judge Katherine Polk Failla found there was no way named
plaintiff Cynthia M. Fullwood could prove she was harmed by the
disclosure of her credit card's expiration date because thieves
would also need her full credit card number, which wasn't shown on
the receipts.
If identity thieves couldn't use the receipts to access
Ms. Fullwood's data, the would-be lead class member didn't have
standing to seek statutory damages under the Fair and Accurate
Credit Transactions Act, said Judge Failla, who tossed the suit
without leave to amend, granting the defendants "the repose they
have so long sought."
"Plaintiff's amendments to her pleading are no match for the
rising tide of binding precedent holding that a bare procedural
violation of FACTA, without more, does not confer Article III
standing," the judge said. "Plaintiff never alleges that
defendants made her receipts accessible to the public in any way,
nor does she claim to have been the victim of identity theft or to
have had her credit card used fraudulently."
This marked the steakhouse chain's fourth attempt since 2014 to
shake the suit. It twice argued Ms. Fullwood hadn't pled the
FACTA violations were willful and not merely negligent. The
first time, Ms. Fullwood was allowed to amend the complaint, and
the second time, the judge found Ms. Fullwood had cured the
problem.
Then, in 2016, after the Supreme Court's Spokeo decision -- which
ruled a plaintiff can't allege a statutory violation without
pointing to concrete harm -- the restaurant moved to dismiss the
second amended complaint, saying the class had no standing. The
court granted the motion, but gave leave to amend, since the
complaint had been filed before Spokeo.
According to Judge Failla's Nov. 6 order, the third amended
complaint had added one new factual allegation, saying
Ms. Fullwood had thrown out prior Wolfgang's receipts "without
burning them or otherwise destroying them . . . thereby exposing
her to identity thieves."
The restaurant had argued the putative class still lacked
standing, and noted that the prior receipts might be blocked by
FACTA's five-year statute of limitations.
The judge said there wasn't enough information in the complaint to
figure out whether the prior receipts were time-barred, nor was
she convinced by Wolfgang's assertion she could assume
Ms. Fullwood had made up the allegations about past receipts to
save her case.
But Judge Failla found Ms. Fullwood couldn't point to a concrete
harm under the Second Circuit's recent Crupar-Weinmann decision,
which found a full expiration date without a full credit card
number did not open up consumers to identity theft.
Ms. Fullwood had contended that redacting expiration dates was the
"core object" of FACTA, and that raising the bar for actual harm
would "write FACTA out of the statute books." But Judge Failla
wasn't convinced by these arguments, noting a case where both the
full credit card number and expiration date were printed on the
receipt could still go forward under Crupar-Weinmann.
Judge Failla also declined to stay the case pending an en banc
review of Crupar-Weinmann, saying the district court has "neither
the authority nor the temerity to tell the Second Circuit that
Crupar-Weinmann was not properly decided and, in any event, sees
no basis upon which to challenge it."
Nor would she give Ms. Fullwood leave to amend. She said the
plaintiff had already had four shots at the complaint, and hadn't
explained how she would establish standing in a fifth filing.
Attorneys for Wolfgang's did not respond to requests for comment
on Nov. 6. An attorney for Ms. Fullwood declined to comment.
Ms. Fullwood is represented by Marvin L. Frank --
mfrank@frankllp.com -- and Gregory A. Frank -- gfrank@frankllp.com
-- of Frank LLP, and Khaled El Nabli, Joseph H. Lilly and Peter Y.
Lee of Nabli & Associates PC.
Wolfgang's is represented by Eric J. Shimanoff -- ejs@cll.com --
and Joel K. Schmidt -- jks@cll.com -- of Cowan Liebowitz & Latman
PC.
The case is Cynthia Fullwood v. Wolfgang's Steakhouse Inc., case
number 1:13-cv-07174, in the U.S. District Court for the Southern
District of New York. [GN]
ZHONG BAO: "Genglong" Suit Seeks Overtime Pay, Damages
------------------------------------------------------
Genglong Ma, individually and on behalf of all other employees
similarly situated, Plaintiff, v. Zhong Bao Produce Group Inc.,
Gordon H Chen, Emma "Doe", Defendants, Case No. 17-cv-06367, (E.D.
N.Y., November 1, 2017), seeks unpaid overtime compensation,
liquidated damages, prejudgment and post-judgment interest,
compensation for failure to provide wage notice at the time of
hiring and failure to provide paystubs and attorney's fees and
costs as well as damages for retaliation claim pursuant to the
Fair Labor Standards Act and New York Labor Law.
Zhong Bao Produce Group Inc. owns and operates a fresh produce
wholesale business located at 56-72 49th Place, Maspeth, NY 11378
where Genglong Ma was hired as a helper, working worked
approximately forty-eight hours per workweek without overtime
premium. Genglong made multiple complaints regarding Defendants'
failure to correctly report federal and state payroll tax on his
behalf in May through July 2017. On July 24 2017, Defendants gave
the final wage payment to Plaintiff and informed him via phone
that Plaintiff was terminated. [BN]
Plaintiff is represented by:
Jian Hang, Esq.
HANG & ASSOCIATES, PLLC
136-18 39th Ave., Suite 1003
Flushing, NY 11354
Tel: (718) 353-8588
Email: jhang@hanglaw.com
* Greenberg Traurig Discusses Consumer Demand Letters Under MCPA
----------------------------------------------------------------
David G. Thomas, Esq. -- thomasda@gtlaw.com -- James P. Ponsetto,
Esq. -- ponsettoj@gtlaw.com -- and Michael E. Pastore, Esq. --
pastorem@gtlaw.com -- of Greenberg Traurig, LLP, in an article for
The National Law Review, report that the Massachusetts Consumer
Protection Act (Chapter 93A, Section 9) prohibits a business from
engaging in unfair or deceptive acts or practices. Chapter 93A
litigation usually is time consuming, expensive, and exposes a
company to mandatory multiple damages (if the act or practice was
a knowing and willful violation of Chapter 93A) and attorneys'
fees. These provisions provide a consumer's counsel significant
leverage when litigating and attempting to settle Chapter 93A
claims -- particularly when brought in a class-action setting.
Chapter 93A, however, affords a business an opportunity to gain
that leverage back and limit exposure to the statute's mandatory
multiple damages and fee shifting provisions as well as foster
more meaningful settlement discussions, if appropriate. Taking
advantage of this opportunity, which occurs usually only once and
before the litigation begins, can be beneficial for a company.
Specifically, a consumer's claims most often start with a Chapter
93A demand letter, which the consumer must send before initiating
any litigation. The demand letter must identify the claimant,
describe the alleged unfair or deceptive acts and injury suffered,
and give a company 30 days to provide a written response and
tender a reasonable settlement, if appropriate. A company's
opportunity to respond should not be taken lightly because, among
other things, a company has an affirmative obligation to
investigate the facts and law and determine whether the company
should tender a reasonable settlement in response to the demand
letter. Failure to investigate may evidence bad faith, which can
expose the company to multiple Chapter 93A liability (even if the
underlying unfair or deceptive practice was not knowing or
willful).
Also, if a company receiving a demand letter tenders a settlement
that is later found to be reasonable in relation to the injury
actually suffered, Chapter 93A requires the court to limit the
consumer's recovery to the relief tendered in the response. Also,
a reasonable settlement offer will limit a prevailing consumer's
recovery of attorneys' fees to only those fees incurred prior to
rejecting the settlement tender. Most times, this would prevent a
consumer from recovering attorneys' fees from the filing of the
complaint through trial, which likely will be the period in which
most of the fees will be incurred in the litigation. This
statutory limitation holds true even if the consumer ultimately
(i) prevails on summary judgment or at trial and (ii) proves the
company engaged in knowing or willful unfair or deceptive acts or
practices.
If the consumer's demand letter contains a demand for relief on
behalf of a class of similarly situated consumers, a company
arguably may not be obligated to tender a settlement to the
putative class until the class has been certified. In turn, after
a class is certified, a company would be able to make a reasonable
settlement offer to the certified class to obtain the damages and
fee-limiting benefits of Chapter 93A. However, where a putative
class and damages are reasonably ascertainable at the time of the
initial demand, there exists case law indicating that a company
should make a settlement offer to redress the injury of the
putative class with the company's response to obtain the damages
and fees limitations.
Consequently, the importance of a proper investigation and
response to a Chapter 93A demand letter cannot be overstated. A
company should have procedures in place to investigate the claims
in a demand letter and determine whether or not it will make a
settlement offer in response to the letter with the 30-day
statutory response period. These procedures can be incorporated
easily into a company's existing litigation response and readiness
protocol. Ultimately, a company that conducts a thorough
investigation will likely be in a better position to assess
whether it should make a settlement offer in response to a demand
letter and take full advantage of the pre-litigation opportunity
to limit damages and fees afforded by Chapter 93A. [GN]
* Reed Smith Attorney Dismisses Rulings in Various Class Actions
----------------------------------------------------------------
James M. Beck, Esq. -- jmbeck@reedsmith.com -- of Reed Smith LLP,
in an article for Lexology, wrote that last month we brought you
word of an excellent result (preemption) in a ridiculous case -- a
class action claiming that the drops in eye-drops are too big.
That decision was in accord with an earlier decision likewise
dismissing such claims on preemption grounds. See Thompson v.
Allergan USA, Inc., 993 F. Supp.2d 1007 (E.D. Mo. 2014).
However, there is another ground on which these bottom-feeding
actions have been dismissed -- lack of sufficient injury to
support standing. After all, the concept of some sort of ideal
"price" for a product, above which it is improper to charge is a
will-o-wisp, apparently knowable only to plaintiff-side experts
(just ask them, they'll tell you). This is called "benefit of the
bargain" by such experts. Courts tend to use a different
description -- "absurd."
[Plaintiff] received the drug she was prescribed, the drug did the
job it was meant to do . . ., and it caused no apparent physical
injuries. Under such circumstances, there could be no
ascertainable loss. . . . The Court believes Plaintiffs' proposed
liability theory, which requires no demonstrable loss of any
benefit, would lead to absurd results and holds that Plaintiffs
fail to state a claim as a matter of law.
In re Avandia Marketing Sales Practices & Products Liability
Litigation, 639 F. Appx. 866, 869 (3d Cir. 2016) (citations and
quotation marks omitted), affirming, 100 F.Supp.3d 441, 446 (E.D.
Pa. 2015), also holding "absurdity is inherent in the nature of
Plaintiff's claimed loss" because it was "based only on the idea
that [the product] is inherently worth some unspecified amount
less than whatever Plaintiff might have paid for it").
That was essentially how the Seventh Circuit reacted to these same
eye drop allegations in Eike v. Allergan, Inc., 850 F.3d 315 (7th
Cir. 2017). We described the absurd theory that the plaintiffs
were pursuing in our Eike post, and because we're lazy, we'll
simply repeat that here:
The plaintiffs sued pharmaceutical manufacturers of eye drops used
for the treatment of glaucoma because the drops were bigger than
they needed to be. The theory is that the plaintiffs were paying
more than they would have if the drops were smaller. The
plaintiffs alleged no conspiracy among the defendants. This was
not an antitrust case. . . . Nor did the plaintiffs allege any
misrepresentations. Rather, the plaintiffs simply sought, because
they thought it would be less expensive, a smaller dose product
that nobody made.
The Seventh Circuit essentially agreed: "The fact that a seller
does not sell the product that you want, or at the price you'd
like to pay, is not an actionable injury; it is just a regret or
disappointment -- which is all we have here, the class having
failed to allege "an invasion of a legally protected interest.'"
850 F.3d at 318 (citations omitted). Accord Carter v. Alcon
Laboratories, Inc., 2014 WL 989002, at *4-5 (E.D. Mo. March 13,
2014) (also dismissing identical claim for lack of any cognizable
injury).
Apparently, however, the inherent triviality of that claim is no
deterrent to today's class action lawyers, who seem to have
nothing better to do than measure the comparative value of eye
drop drips. After several attempts, they seem to have found a
couple of judges credulous enough to allow one of these non-injury
cases to survive -- at least on the standing/injury issue. That's
today's case, Cottrell v. Alcon Labs, ___ F.3d ___, 2017 WL
4657402 (3d Cir. Oct. 18, 2017). Looking to the "scientific
consensus on eye drop size," the majority is willing to let
plaintiffs proceed on the notion that making eye drop drips bigger
than they have to be is a consumer protection violation. Id. at
*2. They may proceed even though "no defendant has reduced their
products' drop sizes," and thus there is no competing product,
priced at any price, against which to ascertain the plaintiffs'
purportedly "substantial economic injury." Id. Nor does it appear
that the FDA has ever approved - or even had submitted to it - eye
drop drips of the "smaller" size plaintiffs claim it is somehow
illegal not to make under state law.
The standing question focused on "injury in fact," and as the
party bringing the claim, plaintiffs had the burden of proving
standing. Id. at *4. To find standing here, the majority
(conceding that the district court's no-standing analysis had
"some persuasive appeal") went deep into the weeds -- breaking
"injury in fact" into various "components." Id. at *5. The first
was a "legally protected interest." Conveniently, this allowed the
Cottrell majority to base their result on something that prior
precedent had "not defined" or even "clarified whether [it] does
any independent work in the standing analysis." Id. Presto! A
clean slate on which to build a standing castle in the air.
"[W]hether a plaintiff has alleged an invasion of a "legally
protected interest' does not hinge on whether the conduct alleged
to violate a statute does, as a matter of law, violate the
statute." Id. Impressive -- this is a holding that the merits
don't matter. We'll come back to that.
The second aspect of Cottrell's drawing on a clean slate is "that
financial or economic interests are "legally protected interests'
for purposes of the standing doctrine." Id. at *6. Well, duh. That
seems like a platitude. Third, "legally protected interests" can
be created by statute, including a state statute. Id. That also
sounds platitudinous -- except Cottrell separates that proposition
from any injury. That comes in the fourth factor -- that
"interest must be related to the injury in fact" as opposed to
being "a byproduct of the suit itself." Id.
Having set up this thicket on its clean slate, the court's actual
analysis of the injury requirement's application to overly large
eye drop drips takes only a paragraph:
Plaintiffs claim economic interests: interests in the money they
had to spend on medication that was impossible for them to use.
They seek monetary compensation for Defendants' conduct that they
allege caused harm to these interests. Plaintiffs' claimed
interests arise from state consumer protection statutes that
provide monetary relief to private individuals who are damaged by
business practices that violate those statutes. These claims fit
comfortably in categories of "legally protected interests" readily
recognized by federal courts.
Id. (citing Cantrell v. City of Long Beach, 241 F.3d 674, 684 (9th
Cir. 2001)). Wow! At that level of generality, any claim that
anything for any reason should have been made differently or
priced differently confers standing. That no such alternative
product exists is of no bearing. This breathtakingly broad
holding means that the amount of harm to the "economic interest"
being undefinable has no bearing. That the "business practices"
at issue were a consequence of the FDA-approved design of the
product has no bearing. These are presumably "merits questions"
that court already divorced from standing by putting that rabbit
in the hat in its "first" stroke on the blank slate -- that merits
don't matter.
We've seen this sort of credulous avoidance of merits questions
before in class actions before. Remember how courts for decades
misinterpreted Eisen v. Carlyle & Jacqueline, 417 U.S. 156 (1974),
to find that class certification can't look at the merits? That
was finally interred once and for all in Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 351 & n.6 (2011), but now we see it popping
up again on this supposed standing blank slate.
It's not really a blank slate, however. The Third Circuit, and
many other courts, have held that TwIqbal "plausibility"
requirements apply to the analysis of standing questions. "With
respect to 12(b)(1) motions in particular, the plaintiff must
assert facts that affirmatively and plausibly suggest that the
pleader has the right he claims." In re Schering Plough Corp.
Intron/Temodar Consumer Class Action, 678 F.3d 235, 244 (3d Cir.
2012) (applying TwIqbal pleading requirements to standing analysis
in RICO drug pricing class action). TwIqbal "teach that standing
cannot rest on mere "legal conclusions' or "naked assertions.'"
Finkelman v. Nationall Football League, 810 F.3d 187, 194 n. 55
(3d Cir. 2016) (citation and quotation marks omitted).
Because Lujan mandates that standing "must be supported in the
same way as any other matter on which the plaintiff bears the
burden of proof," it follows that the Twombly-Iqbal facial
plausibility requirement for pleading a claim is incorporated into
the standard for pleading subject matter jurisdiction. Lujan, 504
U.S. at 561. Therefore, we join many of our sister circuits and
hold that when evaluating a facial challenge to subject matter
jurisdiction under Rule 12(b)(1), a court should use Twombly-
Iqbal's "plausibility" requirement, which is the same standard
used to evaluate facial challenges to claims under Rule 12(b)(6).
Silha v. ACT, Inc., 807 F.3d 169, 174 (7th Cir. 2015) (citing
Schering Plough along with many other cases). "Just as the
plaintiff bears the burden of plausibly alleging a viable cause of
action, so too the plaintiff bears the burden of pleading facts
necessary to demonstrate standing." Hochendoner v. Genzyme Corp.,
823 F.3d 724, 730 (1st Cir. 2016) (Iqbal citation omitted) (also
providing string citation of TwIqbal standing cases).
Along these lines, we also point out that the sole citation in
Cottrell supporting its one-paragraph injury in fact analysis,
Cantrell, supra, is a Ninth Circuit case, and the Ninth Circuit is
the only circuit that does not follow TwIqbal in standing cases.
See Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011)
(cited as lone exception in Silha).
Having thus improperly insulated the inherently ridiculous nature
of the alleged injury from TwIqbal inspection on standing
questions -- without even mentioning TwIqbal -- Cottrell then
disagrees with Eike for precisely that reason. To do so, Cottrell
splits another hair -- distinguishing business practices that are
"unfair" under a consumer protection statute from those "that are
fraudulent, deceptive, or misleading." 2017 WL 4657402, at *6.
The plaintiffs in Eike explicitly alleged that the defendants'
practices in manufacturing and selling eye medication were
"unfair". . . . The Court was obliged to take these allegations as
true for purposes of the standing inquiry.
Id.
That is, to be charitable, garbage. "Unfair" by itself is your
classic legal conclusion. Under TwIqbal, legal conclusions have
to be accompanied by some factual basis to survive dismissal. Eike
rightly pointed out that, in the absence of any allegation of
anything false or misleading about how these products were
marketed, an "unfairness" allegation amounted to mere
"dissatisfaction with the defendants' products or their prices."
2017 WL 4657402, at *6 (describing Eike).
Having thus improperly given the plaintiffs' inherently
implausible theory on "legally protected interest a TwIqbal free
pass, Cottrell also waved it through the other injury in fact
factors it created. Most interestingly -- because of the dissent
-- Cottrell attempted to distinguish a prior standing precedent,
Finlelman, supra.
[Plaintiffs'] pricing theory is far less speculative than . . .
the theory of financial harm we rejected in Finkelman . . .,
[where t]he plaintiff claimed that this policy reduced the number
of tickets available in the resale market. Under the basic
economic principle of supply and demand then, the policy resulted
in an inflated ticket price in the resale market, according to the
plaintiff. We rejected plaintiff's theory, as the plaintiff pled
no facts to support their assertion that [defendant's] policy
would actually reduce the number of tickets in the resale market.
Id. at *9. Since a "reduced size" of the eye drop drip (produced
by a different sized hole in the tip) was the "only change from
the status quo" that plaintiffs' theory in Cottrell requred in the
majorities eyes, it was less "speculative" than the too-remote
theory in Finkleman, and thus "sufficient to satisfy the injury-
in-fact requirement." Id. at *10.
The dissent saw things differently. Finkleman was dispositive ("I
believe that Finkelman all but decides this case"). Cottrell, 2017
WL 4657402, at *12 (dissenting opinion). "We properly recognized
that markets operate in complex ways." The market forces in
Finkleman "made clear that any potentially unlawful conduct by the
[defendant] did not necessarily result in higher prices to the
plaintiff" and "concluded that we have no way of knowing whether
[defendant's] withholding of tickets would have had the effect of
increasing or decreasing prices on the secondary market." Id.
[F]or purposes of analyzing economic injuries in the context of
marketwide effects, we cannot do precisely what the plaintiffs
here ask of us: isolate and change one variable while assuming
that no downstream changes would also occur. These cases . . .
reflect courts' skepticism about plaintiffs' ability to satisfy
the case or controversy requirement of Article III by relying on
such imaginative economic theories. Thus, contrary to the
Majority's assertion, the plaintiffs' pricing theory does in fact
depend on exactly the sort of presumption rejected by us and by
other courts -- namely, the presumption that no other aspects of
the market would change once the defendants' conduct did. . . .
Finkelman makes clear that [standing analysis] distinguishes
"between allegations that stand on well-pleaded facts and
allegations that stand on nothing more than supposition." . . .
The plaintiffs . . . ask us to assume certain facts about other
actors' behavior -- exactly the sort of assumption that cannot be
proven at trial. Accordingly, I would reject the plaintiffs'
alleged economic injury as overly speculative and untenable under
existing precedent.
Id. at *13 (multiple citation footnotes omitted).
The Cottrell dissent goes on to discuss multiple reasons why
plaintiffs' attenuated economic assumptions are "a particularly
bad fit for the market for pharmaceuticals." Id.
Pharmaceuticals are not priced "by volume;" "unit-based pricing is
too one-dimensional for the [pharmaceutical] marketplace."
Pharmaceutical pricing is "value-based"; "measured in part by
effective doses."
This pricing "shift . . . sever[s] the link between volume and
price upon which the plaintiffs' alleged injury depends."
"[T]he price of each bottle could actually increase if each bottle
provided more doses."
Because plaintiffs' assumption "does not reflect market conditions
and pressures in the pharmaceutical industry," it would "draw an
unreasonable inference about the downstream consequences of" the
design change they are demanding.
"[U]nreasonable" inferences cannot be accepted "at face value."
Id. at *13-14 (dissenting opinion).
The dissent is of the view that the majority's decision conflicts
with Finkleman. We agree, but go further. We think the entire
construct in Cottrell conflicts with prior Third Circuit precedent
applying TwIqbal in standing cases because of its holding that the
merits -- and thus the facts that must be pleaded to establish the
"plausibility" of the claim on the merits -- don't matter in
standing cases. Cottrell thus represents, with In re Fosamax
(Alendronate Sodium) Products Liability Litigation, 852 F.3d 268
(3d Cir. 2017), the second abrupt pro-plaintiff lurch by the Third
Circuit this year, which is less surprising than it might seem,
considering the both of the judges in the majority in Cottrell
also decided Fosamax.
About the only good thing that can be said about Cottrell is that
it did not purport to decide that preemption issue that has also
defeated these half-baked dropper drip size allegations. Id. at
*11. That argument is that design changes affecting the dosage of
medication delivered -- which is necessarily what plaintiffs' drop
size allegations depend on -- are "major" changes that require
prior FDA approval, and thus are "impossible" to carry out with
the immediacy that state law demands. See Gustavesen v. Alcon
Laboratories, Inc., ___ F. Supp.3d ___, 2017 WL 4374384, at *5 (D.
Mass. Sep. 29, 2017), and Thompson, 993 F. Supp.2d at 1013-13, as
discussed in our prior posts. [GN]
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